Opinion
A129569
01-25-2012
THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS VASQUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County
Super. Ct. No. FCR265944)
Appellant Nicholas Vasquez was tried before a jury and convicted of assault with a firearm use enhancement allegation. (Pen. Code, §§ 245, subd. (a)(2), 12022.5, subd. (a).) In a bifurcated proceeding, the court determined that he had suffered a prior serious felony conviction triggering the Three Strikes law (Pen. Code, § 1170.12) and the five-year enhancement under Penal Code section 667, subdivision (a). Appellant was sentenced to prison for an aggregate term of 15 years: the three-year middle term on the assault count, doubled to six years under the Three Strikes law, plus four additional years for the firearm use enhancement and five additional years for the prior conviction of a serious felony.
In this appeal, appellant contends the judgment must be reversed because: (1) the prosecutor used two peremptory challenges to exclude Hispanic or Hispanic-surnamed jurors in violation of Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); (2) the court allowed an investigating police officer to offer an opinion regarding bullet holes found in the wall of a home at the scene of the shooting underlying the charges in this case; (3) the court denied a request to strike testimony by that same officer alluding to a hearsay statement by a witness; (4) trial counsel failed to object to improper character evidence; and (5) the trial court made misleading comments about the standard of proof beyond a reasonable doubt during voir dire. We affirm.
FACTS
Michelle Ralston lived in the city of Rio Vista, near the corner of St. Francis Way and Virginia Drive. On April 26, 2009, her friend Jacob Jackson came over to do some work in Ralston's front yard. As she was cooking dinner, Ralston heard what sounded like three gunshots. Jackson ran inside the house and said that "Nico" had shot at him. Ralston called 911.
Jackson had been working outside when he saw appellant drive by in a silver Mitsubishi. He had met appellant a few times before and knew him only as "Nico." The two men had a "beef" because a woman Jackson was dating told him she had awakened one night to find appellant in her room and her pajama bottoms pulled down. Jackson thought this woman was unstable, and he did not necessarily believe her story. Nevertheless, Jackson yelled at appellant to pull over when he saw him drive by and told him he was going to "kick his ass."
According to Jackson, appellant drove by a few times before finally stopping the car and getting out. Jackson picked up a baseball bat, intending to hurt (but not kill) appellant, but then noticed appellant was carrying a handgun. Jackson dropped the bat and ran, diving behind some bushes next to the house at 423 St. Francis Way. He heard gunshots and continued to lie behind the bushes until he heard appellant's car drive away. The neighbor at 423 St. Francis Way, a Mr. Griffin, came outside and "exchanged words" with Jackson about the incident. Jackson then ran inside Ralston's house and waited while she telephoned the police.
Glenn Myer and his family were driving through the area in a Chevy Tahoe and stopped at the intersection of Virginia Drive and St. Francis Way. Myer saw a man running across the yard at 423 St. Francis Way, being chased by appellant. Appellant raised his hand and fired several shots from a handgun that appeared to be a revolver. Appellant then got into a light silver car parked on the street and drove down St. Francis Way, proceeding to Highway 12 via Laurel Street.
Myer, who worked for the District Attorney as an investigator and had previously been a patrol sergeant with the Rio Vista Police Department, followed appellant's car. Because his family was with him, he did not follow as closely as he ordinarily would, but he did get a partial license plate number, "4PGH." Myer radioed the dispatch centers in Solano and Contra Costa Counties with a report of the shooting and description of the car. He continued to follow at a distance of three to four car lengths; it was easier to see the car at some times than at others.
Appellant turned onto Highway 160, a two-lane highway with waterways alongside it, and a truck towing a boat got between Myer's vehicle and appellant's car. Appellant's car was stopped by law enforcement agents on Highway 160 and Myer stopped to assist. No gun was found in appellant's car, which turned out to be a Mitsubishi. Myer identified appellant at trial as the man who had fired the weapon and who was detained when the Mitsubishi was stopped. The Mitsubishi was the same car that Myer had seen being driven away from St. Francis Way after the shooting.
In Myer's opinion, the Mitsubishi resembled a Honda. Before the car was stopped, Myer had described it as a silver "Honda-stylish" vehicle.
On the day following appellant's detention, Officer Pratt of the Rio Vista Police Department went to 423 St. Francis Way to investigate the shooting. Officer Pratt had been a member of the police SWAT team and had "done years of shooting." He found three small holes in the east wall of the residence and concluded, based on his training and experience, that they were consistent with bullet holes. In Pratt's opinion, the position of the bullet holes and their likely trajectory suggested that they had been fired from the location where the shooter in this case was reported to have been standing. A bullet was recovered from one of the holes.
Joette Doner, who lived in the neighborhood on Laurel Way, heard three gunshots one evening in late April 2009. She went outside and saw a grayish car that she identified as a Honda speed by, followed by a dark blue Chevy Tahoe, both heading toward Highway 12. Doner recognized the first car as a Honda due to its logo. When, at trial, Doner was shown a picture of the car appellant was driving when he was stopped by law enforcement on Highway 160, she said it was not the same as the Honda she saw driving down her street, because the car in the picture looked older and wider.
DISCUSSION
I. Batson/Wheeler
Appellant argues that the judgment must be reversed because the prosecutor excluded prospective jurors based on presumed group bias in violation of Batson, supra, 476 U.S. 79 and Wheeler, supra, 22 Cal.3d 258. We disagree.
A. Voir Dire Proceedings
The Batson/Wheeler issue in this case arises from the prosecutor's challenge of two Hispanic or Hispanic-surnamed jurors, Juror S. and Juror C.
Juror S. stated in her written questionnaire that she had a bachelor's degree in chemical engineering and worked as a chemist for Lockheed Martin. During voir dire, the prosecutor commented that she had been "extremely quiet" and asked her about her job. Juror S. explained that she was an "interpreter for environmental protection agencies" and that they "finalize environmental shops."
Juror C. stated in her questionnaire that she worked at a cashier for Vella Cheese and had previously worked at a Six Flags amusement park. She was questioned by the prosecutor during voir dire: "[Prosecutor] You look a little nervous sitting over there today. Are you nervous about being up there on the spot right now? [¶] [Prospective Juror C.]: (No response.) [¶] [Prosecutor]: A little bit? [¶] [Prospective Juror C.]: A little bit, yeah. [¶] [Prosecutor]: Have you ever known anyone involved in a criminal case? [¶] [Prospective Juror C.]: Yes. [¶] [Prosecutor]: Who was that? [¶] [Prospective Juror C.]: Just classmates. [¶] [Prosecutor]: Friends? [¶] [Prospective Juror C.]: Yes. [¶] [Prosecutor]: Anything about those experiences that cause you concern about sitting on a jury? [¶] [Prospective Juror C.]: No. [¶] [Prosecutor]: When you were working over at Six Flags, were you ever the victim of a crime or anything like that? They get a lot of robberies and such over there, I take it. [¶] [Prospective Juror C.]: Yeah. [¶] [Prosecutor]: Okay. Any concerns about the type of case, that this is a shooting case, the type of crime? [¶] [Prospective Juror C.]: No. [¶] [Prosecutor]: Okay. You think you'll be able to talk to these 11 strangers if you go back in the room and talk about the case? [¶] [Prospective Juror C.]: I think so."
The prosecutor used her first peremptory challenge to excuse Juror S., and defense counsel made a Batson/Wheeler motion, noting that the juror appeared to be Hispanic and that appellant, who is apparently Hispanic, "has a right to have a jury composed of his peers." The court turned to the prosecutor for a response, who stated, "Well, first of all, I think she appeared to be of Filipino descent, but that was neither here nor there. [¶] I excused her because she's a chemist, and so she has a scientific background. There is not going to be any scientific evidence, and I don't need a juror in the back trying to evaluate scientific evidence that isn't present or the lack thereof in determining the guilt or not guilt [sic] of the defendant." The court found that explanation to be reasonable and denied the Batson/Wheeler motion.
The prosecutor used her third peremptory challenge to excuse Juror C., and defense counsel made another Batson/Wheeler motion, noting that Juror C. also appeared to be Hispanic or of Hispanic descent. The prosecutor stated, "Ms. [C.] is extremely young. I don't know what her nationality is. She has very little life experience, and she was extremely shy, even in answering questions with me, and so I had concerns about her ability to deliberate, have her own opinion, and follow the laws of the Court." Defense counsel commented that there were "several young people" who were part of the jury pool and that most of them had been relatively shy about bringing up information about themselves. The court denied the motion, stating that it could not determine Juror C.'s ethnic origin, but she did appear to be "nervous and inexperienced" — a satisfactory reason for a peremptory challenge.
B. Discussion
As discussed in Batson and Wheeler, both the state and federal Constitutions bar peremptory challenges that are based on a juror's race, ethnicity or membership in a similar cognizable class. (People v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix).) A defendant who suspects that a juror has been challenged for a discriminatory reason must bring a motion under Batson/Wheeler, at which point the trial court will analyze the claim using a familiar three-prong test. First, it must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race, ethnicity or some other impermissible ground. Second, if the showing is made, the burden then shifts to the prosecutor to demonstrate that the challenges were exercised for a neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. (Lenix, at p. 612.) A prima facie case of discrimination may sometimes be based on the appearances of the jurors, without the need to establish the precise racial or ethnic identity of the juror. (People v. Bell (2007) 40 Cal.4th 582, 599; People v. Motton (1985) 39 Cal.3d 596, 604.)
Because the prosecutor in this case offered her reasons for challenging Jurors S. and C., we proceed to the second and third steps of the Wheeler/Batson analysis to determine whether the record supports the trial court's ultimate conclusion that the challenge was not made for a discriminatory purpose. (People v. Lewis (2008) 43 Cal.4th 415, 471.) We review the trial court's ruling for substantial evidence, presuming that the prosecutor used the peremptory challenge in a constitutional manner and "giv[ing] great deference to the trial court's ability to distinguish bona fide reasons from sham excuses." (People v. Burgener (2003) 29 Cal.4th 833, 864 (Burgener).) The reason does not need to be well-founded so long as it is not discriminatory. (Purkett v. Elem (1995) 514 U.S. 765, 768.) " '[E]valuation of the prosecutor's state of mind based on demeanor and credibility lies "peculiarly within a trial judge's province." ' " (People v. Stevens (2007) 41 Cal.4th 182, 198.)
Substantial evidence supports the court's ruling in this case. The prosecutor explained that she excused Juror S. because Juror S. was a scientist who might be inclined to wonder about the People's case if no scientific evidence was presented. A prosecutor may "challenge a potential juror whose occupation, in the prosecutor's subjective estimation, would not render him or her the best type of juror to sit on the case for which the jury is being selected." (People v. Reynoso (2003) 31 Cal.4th 903, 925; see also United States v. Evans (7th Cir. 1999) 192 F.3d 698, 700 [prosecutor may strike jurors whose specialized knowledge might color their ability to be objective].)
Appellant argues that the prosecutor's reason for excusing Juror S. could not have been genuine because she left others with scientific backgrounds on the jury. We are not persuaded. The jurors to which appellant compares Juror S. had backgrounds in nursing, health and safety technology, information technology/aeronautics, hospital billing and veterinary science. These professions do not require the same type of scientific knowledge and methodology associated with chemical engineering, and the prosecutor's decision to leave these other jurors on the panel does not suggest that her stated reason for excluding Juror S. was pretextual.
Comparative juror analysis is one tool used to review a claim of discriminatory intent at the third stage of the Batson/Wheeler analysis, and must be performed on appeal even if not conducted below. (Miller-El v. Dretke (2005) 545 U.S. 231, 241-252; Lenix, supra, 44 Cal.4th at p. 607.)
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Appellant argues that the prosecutor could not have been sincere when she said her case would not involve scientific evidence because she introduced Officer Pratt's testimony about the bullet holes found at the scene. Pratt's testimony about the bullet holes, though based on his experience in handling firearms, did not cross over into the realm of "scientific testimony." The record does not suggest the prosecutor was being disingenuous when she said she was concerned about Juror S. given the lack of scientific evidence in this case.
We also reject the claim that the trial court erred in upholding the peremptory challenge to Juror C. The prosecutor explained that she found Juror C. to be youthful, shy and inexperienced, which raised a concern about her ability to effectively deliberate and express her views. The court agreed that the juror seemed "nervous and inexperienced." Limited life experience and immaturity are neutral reasons supporting a peremptory challenge. (See People v. Sims (1993) 5 Cal.4th 405, 431; People v. Neuman (2009) 176 Cal.App.4th 571, 581; People v. Perez (1994) 29 Cal.App.4th 1313, 1328.) So too is a nervous demeanor. (See Lenix, supra, 44 Cal.4th at p. 614.) Appellant notes that other panelists were described as "quiet" (including Juror S., the subject of the first Batson/Wheeler challenge), but a reasonable reading of the trial transcript is that Juror C. was the only one who was too nervous to even respond to the prosecutor's first question.
Substantial evidence supports the trial court's denial of the two Batson/Wheeler motions. (Burgener, supra, 29 Cal.4th at p. 864.)
II. Opinion Evidence Regarding Bullet Holes
Over defense objection, the trial court allowed Officer Pratt to offer an opinion that the three holes found in the wall of the home at 423 St. Francis Way were bullet holes, and that they were at a location consistent with the reported location of the shooter in this case. Appellant argues there was no foundation to allow Pratt to offer an expert opinion, and that the testimony was not admissible as a lay opinion because it was not based on events of Pratt's own perception. (See Evid. Code, §§ 720, 800, 801.) We disagree.
"A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." (Evid. Code, § 720, subd. (a).) "[E]xpert opinion testimony is admissible only if the subject is 'sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.' " (People v. Vang (2011) 52 Cal.4th 1038, 1044; Evid. Code, § 801, subd. (a).)
"The determination that a witness qualifies as an expert and the decision to admit expert testimony are within the discretion of the trial court and will not be disturbed without a showing of manifest abuse." (People v. Hill (2011) 191 Cal.App.4th 1104, 1118; see also People v. Mendoza (2000) 24 Cal.4th 130, 177.) Error regarding a witness's qualifications as an expert will be found only if the evidence shows that the witness clearly lacks the qualifications to testify as an expert. (People v. Farnam (2002) 28 Cal.4th 107, 162; Hill, supra, at p. 1118.)
The trial court did not abuse its discretion when it concluded that Officer Pratt was qualified to identify the holes in the house as bullet holes and state that their location was consistent with the reported location of the shooter. His years of experience with firearms, which included membership on the SWAT team, necessarily provided him with experience in firing guns, seeing where the bullets went, and observing the formation of bullet holes. Appellant's complaints about Pratt's qualifications go to the weight of his testimony, not its admissibility. (See People v. Panah (2005) 35 Cal.4th 395, 478.)
Additionally, it is not reasonably probable that the jury would have reached a verdict more favorable to appellant if it had not heard the opinions offered by Officer Pratt. (People v. Prieto (2003) 30 Cal.4th 226, 247; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) Pratt offered two opinions now challenged by appellant: that the holes in the wall at 423 St. Francis Way were caused by bullets and that whoever fired those shots was standing in a location where the shooter in this case was reported to have been standing. The inference, then, was that the shots fired at Jacob Jackson caused the holes in the walls. But the evidence was already overwhelming that shots had been fired: Jacob Jackson reported that "Nico" shot at him; Michelle Ralston and Joette Doner heard the shots from their homes in the neighborhood; and Glenn Myer witnessed the shooting as he drove by with his family. Pratt's opinion regarding the nature of the holes and the position of the shooter was cumulative, and did not tend to prove the identity of the shooter, which was the primary issue in this case. (See People v. Williams (2009) 170 Cal.App.4th 587, 613 [cumulative evidence of defendant's involvement with drugs and gangs harmless under Watson].)
III. Motion to Strike Hearsay Statement Regarding Bullet Holes
Appellant argues that he was prejudiced by the trial court's denial of his motion to strike testimony by Officer Pratt regarding an inadmissible hearsay statement made by the homeowner at 423 St. Francis Way. We reject the claim.
At a hearing conducted under Evidence Code section 402 to determine the scope of Officer Pratt's testimony, Pratt attempted to recount a conversation he had with Mr. Griffin, the homeowner of 423 St. Francis Way, in which Griffin said the bullet holes had not been in the wall of the home before the shooting. The court ruled that Griffin's statement was inadmissible hearsay and would not be allowed in front of the jury.
During the cross-examination of Officer Pratt, defense counsel questioned him about the bullet holes found in the wall and the following exchange occurred: "[Defense Counsel]: [Y]ou can't say the length of time these holes had been at the residence by your observation alone, is that correct? [¶] [Officer Pratt]: By my observation alone -[¶] [Defense Counsel]: Yes. [¶] [Officer Pratt]: — I could not. By my conversation with the homeowner, I could. [¶] The Court: You were not asked about your conversation. It was your observation and nothing more."
Outside the presence of the jury, defense counsel asked the court to strike Officer Pratt's remark about his conversation with the homeowner. "He was present in the courtroom when there was an order that he is not supposed to refer to the hearsay, and I did specifically just ask him about, you know, if he can determine, just by looking at it, the age of the bullet hole which was, again, discussed during our in limines that I could do that on cross. [¶] Based on that violation of the in limine order, I would just ask that the testimony be stricken." The court denied the request: "I think I cut him off before you did, and I don't think there was any - anything inadmissible before the jury, so I am going to deny your motion."
A trial court's ruling on a motion to strike a witness's testimony is reviewed for abuse of discretion. (See People v. Thompson (2010) 49 Cal.4th 79, 130.) Under this deferential standard, the ruling will be disturbed on appeal only if the court acted in an "arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Tucker (2011) 196 Cal.App.4th 1313, 1317; see also People v. Jordan (1986) 42 Cal.3d 308, 316; In re Ryan N. (2001) 92 Cal.App.4th 1359, 1385.) We find no abuse here. Officer Pratt should not have referred to his conversation with Mr. Griffin, but his remark did not reveal the content of that conversation. The court could have reasonably concluded that it had adequately handled the matter by preventing Pratt from going any further.
Even assuming the court should have granted the motion to strike, the error was not prejudicial. The most the jury might have inferred from Officer Pratt's testimony is that the homeowner told him the bullet holes had not been there prior to the reported shooting on April 26, 2009. Like Pratt's testimony in general, this corroborated the evidence that there was a shooting, but did not tend to identify appellant as the shooter. The only real question in this case was whether the prosecution had proved beyond a reasonable doubt that the shots were fired by appellant. It is not reasonably probable the jurors would have resolved this question differently if they had been specifically admonished to disregard testimony suggesting that the bullet holes did not predate the shooting. (See People v. Williams (1997) 16 Cal.4th 635, 673; Watson, supra, 46 Cal.2d at p. 836.)
IV. Ineffective Assistance of Counsel/Character Evidence
Jacob Jackson testified at trial that he challenged appellant to a fight when he saw him driving by because, "I was going out with this girl, and she's pretty much mentally unstable, but she told me that one night he [appellant] was there, that she woke up, and he had her pajama bottoms down to her knees - so I reacted to that." Asked by the prosecutor whether he believed her account, Jackson explained, "I didn't quite believe it, but I didn't want to say she was lying." Appellant argues that this testimony was inadmissible character evidence that should have been excluded under Evidence Code section 1101, subdivision (a), and that his trial attorney's failure to object deprived him of effective assistance of counsel. We disagree.
To demonstrate ineffective assistance, a defendant must show that (1) counsel's performance was deficient, falling below an objective standard of reasonableness; and (2) that deficient performance was prejudicial, in that there was a reasonable probability that, but for counsel's failings, the outcome would have been more favorable to the defense. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) A defendant bears the burden of proving a claim of ineffective assistance by a preponderance of the evidence, and cannot do so on direct appeal unless the record affirmatively discloses that counsel lacked a rational tactical basis for the challenged act or omission. (In re Thomas (2006) 37 Cal.4th 1249, 1257; People v. Majors (1998) 18 Cal.4th 385, 403.) Where the record sheds no light on counsel's reasons, the reviewing court must reject the claim unless counsel was asked for an explanation and failed to provide one, or there is no possible satisfactory explanation for counsel's performance. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
Appellant argues that Jackson's testimony about his girlfriend's story was inadmissible under Evidence Code section 1101, subdivision (a), which provides, subject to certain exceptions not relevant here: "[E]vidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." Evidence that Jackson's girlfriend had told Jackson about possible sexual misconduct by appellant was not offered to prove appellant's conduct in this case, but to explain Jackson's decision to challenge appellant to a fight.
Even if we assume that Jackson's testimony was inadmissible under Evidence Code section 1101, subdivision (a) or some other provision, the failure to object to evidence at trial did not amount to incompetence. (See People v. Riel (2000) 22 Cal.4th 1153, 1197; People v. Sheldon (1989) 48 Cal.3d 935, 951.) "In the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jury's apparent reaction to the proceedings." (Riel, supra, at p. 1197.) Defense counsel might have rationally concluded that there was no point objecting to the evidence about the story told by Jackson's girlfriend when it was clear that Jackson did not necessarily believe it himself. Indeed, Jackson's claim that he challenged appellant to a fight and armed himself with a baseball bat, even though he was unconvinced appellant had actually done what his girlfriend claimed, reflected poorly on Jackson's character, credibility and judgment. Under the circumstances, defense counsel might have concluded that the testimony hurt Jackson's credibility more than it did appellant's case, and that it would make the jury less likely to believe Jackson's testimony about the shooting. Appellant has not carried his burden of showing that the failure to object was ineffective assistance of counsel.
V. Court's Comments Regarding Reasonable Doubt Standard
During its initial comments to the jury panel during voir dire, the court used a jigsaw puzzle analogy to illustrate the concept of proof beyond a reasonable doubt. Appellant argues that these comments amounted to structural error requiring reversal, because they diluted the People's burden of proof. We are not persuaded.
The court began its discussion of reasonable doubt by reading the jury panel a paragraph from CALCRIM No. 220: "Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt." The court continued, ". . . As an example of this, I like to imagine - or ask jurors to imagine that they have two small puzzles to put together and to identify the picture once they complete their task. In my example, in each of these puzzles is a picture of an individual. [¶] In the first of my examples, you put the puzzle together, and you find that there are three or four pieces missing. Now, you might look at - now, in this case, they're missing around the edges or other places that are not really important or pertinent to your identification. You might look at the puzzle and say 'well, it's not all there, and I have a doubt.' Well, in my opinion, it must be a possible or imaginary doubt, rather than reasonable doubt. [¶] In the second of my examples, you put the second puzzle together, and you find the same number of pieces missing, three or four, only in this case they are missing around the eyes or other places that are important to your identification. Now, if you look at this picture, and you do not have an abiding conviction that your identification is accurate, or proved, then you would have a reasonable doubt."
Appellant argues that this puzzle analogy invited the jury to guess at evidence that has not been presented and impermissibly suggested that reasonable doubt could be quantified. In evaluating this claim of instructional error, we consider whether it is reasonably likely that any juror would have applied the court's remarks in a manner that violates the Constitution, viewing them in light of the instructions as a whole. (Victor v. Nebraska (1994) 511 U.S. 1, 6; Boyde v. California (1990) 494 U.S. 370, 377; People v. Cain (1995) 10 Cal.4th 1, 36.)
Appellant directs our attention to People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1264-1269 (Katzenberger), in which the prosecutor was found to have committed misconduct by using a puzzle analogy to illustrate the concept of reasonable doubt. In Katzenberger, the prosecutor's closing argument included a PowerPoint presentation in which six of eight puzzle pieces created a picture immediately and easily recognizable as the Statue of Liberty, although a portion of the statue's face and torch were not visible. (Id. at pp. 1264-1265.) Over defense objection, the prosecutor argued that even without the missing pieces, a person would know beyond a reasonable doubt that the puzzle depicted the Statue of Liberty. (Ibid.)
The appellate court in Katzenberger concluded that the PowerPoint presentation was misleading, leaving the "distinct impression that the reasonable doubt standard may be met by a few pieces of evidence" and "invit[ing] the jury to guess or jump to a conclusion, a process completely at odds with the jury's serious task of assessing whether the prosecution has submitted proof beyond a reasonable doubt." (Katzenberger, supra, 178 Cal.App.4th at p. 1267.) The presentation had also suggested, erroneously, that proof beyond a reasonable doubt could be measured quantitatively at 75 percent (six of eight puzzle pieces). (Id. at pp. 1267-1268.) Though the prosecutor's actions were harmless in light of the overwhelming evidence of the defendant's guilt and the jury instructions correctly defining reasonable doubt, the presentation did amount to misconduct. (Id. at pp. 1268-1269, applying standard of prejudice articulated in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)
The court in this case used the example of two puzzles to illustrate the concept of reasonable doubt, but its remarks were considerably different from those of the prosecutor in Katzenberger. Here, the court contrasted a puzzle that was missing unimportant pieces around the edges with a puzzle that was missing pieces that were part of the picture itself to illustrate the difference between imaginary doubt and reasonable doubt. Unlike the prosecutor in Katzenberger, who suggested that the standard of proof beyond a reasonable doubt might be met even when significant pieces of the puzzle were missing (such as the face and torch in a picture of the Statue of Liberty), the court in this case made clear that reasonable doubt would exist when pieces were missing from the picture itself. The court in no way suggested that the jury should speculate about missing pieces of evidence. Nor did it attempt to quantify the burden of proof by suggesting, either directly or indirectly, that any particular percentage of pieces were sufficient to complete the puzzle. Finally, the court's comments were not accompanied by a lengthy visual demonstration that would have unduly emphasized the analogy, as was the case in Katzenberger.
Before it began deliberations, the jury that was impaneled to try appellant's case was instructed with CALCRIM No. 220, which fully and correctly defined the standard of proof beyond a reasonable doubt. (See People v. Garelick (2008) 161 Cal.App.4th 1107, 1119 [approving language in CALCRIM No. 220].) The court did not reiterate the jigsaw puzzle analogy when it gave the final instructions to the jury before the case was submitted. (See People v. Claxton (1982) 129 Cal.App.3d 638, 668-669 [no reversible error where court's explanatory comments about reasonable doubt standard during voir dire did not misstate the law and were not reiterated during final instructions].) Appellant complains that the prosecutor reminded the jurors of the court's analogy by stating during closing argument, "When you put the picture together, as the court explained at the beginning, the jigsaw puzzle, is the picture clear who the identity of the shooter is? Absolutely. It's [appellant]." Suggesting that the prosecution had met its burden of proof was not improper argument.
Although both courts and prosecutors are well-advised to refrain from embellishing on the statutory definition of reasonable doubt (see People v. Freeman (1994) 8 Cal.4th 450, 503-504), it is not reasonably likely the jurors applied the jigsaw puzzle analogy in this case to lessen the prosecution's burden of proof. (Victor, supra, 511 U.S. at p. 6.)
DISPOSITION
The judgment is affirmed.
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NEEDHAM, J.
We concur.
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JONES, P. J.
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BRUINIERS, J.