Opinion
H041655
01-23-2017
THE PEOPLE, Plaintiff and Respondent, v. JESSE PAUL CHACON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. B1157109)
A jury found defendant Jesse Paul Chacon guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). The jury also found true the allegations that he inflicted great bodily injury (Pen. Code, §§ 12022.7, subd. (a), 1203, subd. (e)(3)) and personally used a dangerous and deadly weapon (Pen. Code, § 12022, subd. (b)(1)). The trial court suspended imposition of sentence and placed defendant on probation for five years. On appeal, defendant contends: (1) he was deprived of the effective assistance of counsel, because trial counsel failed to request a pinpoint instruction on defense of another; (2) the prosecutor committed misconduct; (3) the personal weapon use enhancement must be stricken; and (4) one of the probation conditions must be modified. We agree that the probation condition must be modified. As modified, the order is affirmed.
I. Statement of Facts
A. Prosecution Case
On August 14, 2011, a fight broke out between two groups of men outside the Brass Rail in Sunnyvale. Defendant slashed Hugo Sanchez Juarez's right arm with a knife during the fight.
Juarez had been at the bar with his friends Juan Cortes, Alfredo Cortes, and Arturo Ramos. Michael Stephens and Sergio Duran were also part of their group. Defendant had been at the bar with three or four other men. Both groups of men left at the same time. When a highway patrol car drove by, someone in defendant's group yelled, "immigration" or "La Migra," which Juarez's group understood as a racial slur. Though the others in Juarez's group said "[J]ust let it go," Stephens became angry and asked, "[I]s there a problem?" Stephens began walking toward the other group and confronted Justin Bright. Juarez told defendant's group that they did not want any trouble, grabbed Stephens from behind and pulled him towards his truck, which was parked on the street. Defendant and another member of his group were "throwing signs," insinuating by gestures that they had weapons, and raising their hands as though they were inviting a fight.
Prosecution witnesses testified that there were six or seven men in Juarez's group. Defense witnesses testified that there were between eight and 14 men in Juarez's group.
Juarez and his group walked to his truck. Juarez put Stephens in his truck and gave the keys to Alfredo Cortes while defendant's group continued to yell. As Juarez was getting into the truck, he looked at Stephens, who was on the ground and being attacked by a member of defendant's group. There was a lot of blood on Stephens' back, because he had been stabbed.
Ramos did not remember whether Stephens or Bright threw the first punch. However, he testified at the preliminary hearing that Bright hit Stephens first.
Juarez saw that defendant had "something shiny" in his hand and was quickly approaching Stephens. After Juarez pushed or punched defendant to prevent him from reaching Stephens, Juarez's hand felt "very hot" and there was a lot of blood gushing out of his elbow. Juarez screamed for help and his friends exited the truck to assist him. They got defendant off of Juarez, threw defendant to the ground, hit him, and kicked him. They took Juarez to the hospital.
Juarez had significant injuries to his right forearm. The wound was five to six centimeters long and he lost about 25 percent of his blood. He showed signs of muscle and nerve injury that impaired the use of both his arm and his hand. Juarez underwent two surgeries and was unable to work for 18 months. Over two years after the assault, Juarez had only about 30 percent functionality in his arm.
Police reviewed a videotape of the incident taken from cameras outside the Brass Rail. After issuing press releases of photographs of four men in the videotape, the police received a call from an attorney representing two of the men. However, the attorney did not provide the suspects' names. About a month later, the police received an anonymous call, which provided the name of Dones, his cell number, and the name Jesse. The police were then eventually able to identify the four suspects. After defendant was arrested, he told the police that he kept his folding pocket knife with a four-inch blade in a suitcase in his room.
Anthony Ostroskie, defendant's half brother, told the police that defendant hid his vehicle, which he had driven the night of the incident, at an auto dealership. Police found defendant's vehicle at this location. A friend of defendant's family had agreed to let defendant park his vehicle at his used car business.
B. Defense Case
Ostroskie testified that he went to the Brass Rail with defendant, Bright, and Augustin Dones. Defendant, who had been talking about immigration, was mocked by someone in Juarez's group, which "started pretty much the whole thing." This individual appeared very intoxicated. After Bright went over to the other group, someone punched him and a fight broke out. Ostroskie did not fight with anyone that night. Defendant was badly beaten up. He had a black eye, scratches on his arms and bruises. Defendant was mad at Ostroskie after the incident, because he thought he should have fought to protect him.
Ostroskie was convicted of petty theft in 2008.
Ostroskie also testified that the incident started when defendant yelled out "deported."
Bright, defendant's friend, testified that he was not "stumbling drunk, but [he] was pretty intoxicated." Someone in the other group said something, and Bright approached the group and told him "I don't want any problems. I just want to go home." The biggest individual in that group said "I don't want any problems either." As Bright turned, this individual "sucker punched [him] above the right eye." Bright hit him and this individual went down. Four people then kicked and hit Bright while defendant was fighting with other people. Bright did not throw the first punch. After the fight, Bright's knuckles were "busted" and his eye was bleeding and swollen.
In 2007, Bright was convicted of commercial burglary and unauthorized use of a car. In 2007 and 2008, he was convicted of providing false identification to a police officer.
Defendant testified in his own behalf. Bright said, "La Migra" and defendant interpreted the word into English. The people in the other group were also saying things and they stopped half-way to their car. Bright and "them were just back and forth trying to calm things down" and "[t]hat's when [Bright] got pushed and [defendant] got pushed." Defendant did not know who pushed him. After defendant was pushed, he returned to his vehicle and got his knife, because he "got an ill feeling that something bad was going to happen." Defendant decided not to leave immediately, because the highway patrol had just driven by.
Defendant's testimony differed from his statement to the police in which he stated that he had scrambled back to his vehicle in the middle of the fight to get his knife. This statement was made before he saw the video of the incident.
After defendant saw them kicking and punching Bright on the ground, he walked towards the man who was kicking Bright and intended to grab him and pull him away. Before defendant could grab this man, he was punched. Defendant woke up on the ground. Since he could not see and he heard a loud ringing in his ears, he believed that he had been knocked unconscious. He was conscious for "seconds," and then he woke up again on the ground. While he was face down, he was kicked. After defendant stood up, he "realized that [he] was in a pretty bad situation" and saw that Bright was being attacked. When someone pushed him, he pulled out his knife and screamed, "[G]et the fuck back." Defendant was initially worried about Bright, but "it became a priority to worry about" himself. He took out his knife after he was picked off the ground and he was more worried about his own safety. Defendant stood in one place and swung his knife twice. The second time he swung his knife, Juarez was punching him and they hit each other. Defendant believed that he was knocked out again. He did not know that he had hit anyone with the knife.
After listening to the testimony at trial, defendant believed that the individual who punched him was Juarez.
Defendant first learned that someone had been injured in the fight when a friend told him about a media report of the incident. Defendant then knew that the police were looking for him. He immediately went to an attorney, who told him to "continue on with [his] life." He also stopped driving his vehicle and parked it in a car lot, because he did not want retaliation from "the angry mob that attacked" them. After the incident, defendant had a black eye, a large gash on his nose, a big bump on his chin, bleeding from his nose and mouth, and bruises.
Defendant "guess[ed]" that he told Officer Ramirez that he "yelled out something similar to immigration as a joke." He did not recall that he was angry at his brother for failing to back him up.
II. Discussion
A. Ineffective Assistance of Counsel
Defendant contends that he was deprived of the effective assistance of counsel, because his counsel failed to request a pinpoint instruction on defense of another.
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) " 'In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel's performance was deficient because it "fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms." [Citations.] Unless a defendant establishes the contrary, we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." [Citation.] If the record "sheds no light on why counsel acted or failed to act in the manner challenged," an appellate claim of ineffective assistance of counsel must be rejected "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." [Citations.] If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice, that is, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." [Citation.]' [Citation.]" (People v. Lopez (2008) 42 Cal.4th 960, 966 (Lopez).) " ' "[W]e accord great deference to counsel's tactical decisions" [citation], and we have explained that "courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight" [citation].' " (People v. Stanley (2006) 39 Cal.4th 913, 954.)
"[A] defendant has a right to an instruction that pinpoints the theory of the defense [citations]; however, a trial judge must only give those instructions which are supported by substantial evidence." (People v. Ponce (1996) 44 Cal.App.4th 1380, 1386.) "A pinpoint instruction 'relate[s] particular facts to a legal issue in the case or "pinpoint[s]" the crux of a defendant's case . . . .' " (People v. Ward (2005) 36 Cal.4th 186, 214.)
Here, the trial court instructed the jury pursuant to CALCRIM No. 875 that it was the prosecution's burden to prove that "the defendant did not act in self-defense or in defense of someone else."
The trial court also instructed the jury pursuant to CALCRIM No. 3470: "Self-defense is defense to assault with a deadly weapon. The defendant is not guilty of that crime if he used force against another person in lawful self-defense or defense of another. The defendant acted in lawful self-defense or defense of another if: [¶] Number One, the defendant reasonably believed that he or someone else was in imminent danger of suffering bodily injury; [¶] Number Two, the defendant reasonably believed that the immediate use of force was necessary to defend against that danger; [¶] And three, the defendant used no more force than was reasonably necessary to defend against that danger. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of bodily injury to himself or someone else. Defendant's belief must have been reasonable and he must have acted because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful self-defense or defense of another. [¶] When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed. [¶] A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of bodily injury has passed. This is so even if safety could have been achieved by retreating. [¶] You must find the defendant not guilty if you find that the People have not proved beyond a reasonable doubt that the defendant did not act in either lawful self-defense or defense of another. If you find that either type of defense was lawfully used, there is no requirement that all jurors agree as to which type was used."
The trial court further instructed the jury pursuant to CALCRIM No. 3471: "A person who starts a fight has the right to self-defense only if: [¶] Number One, he actually and in good faith tried to stop fighting; and Number Two, he indicated, by word or conduct, to his opponent, in a way that a reasonable person would understand, that he wanted to stop fighting and that he had stopped fighting. [¶] If the defendant meets these requirements, he then had a right to self-defense if the opponent continued to fight. [¶] However, if the defendant used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant has the right to defend himself with deadly force and was not required to try to stop fighting or communicate the desire to try to stop . . . the opponent. [¶] A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force."
Noting that the jury could have reasonably found that Bright provoked the fight by saying, "La Migra," and approached Juarez's group, defendant argues that he had a right to defend Bright even though Bright did not have a right to self-defense. Thus, defendant argues that trial counsel was incompetent for failing to request the following pinpoint instruction: " 'The defense of another person does not depend on whether the other person has a lawful right to self-defense. Even if the person defended did not have a lawful right to self-defense, the defendant acted in lawful defense of another if the defendant reasonably believed the other person was in imminent danger of suffering bodily harm and the defendant reasonably believed that the immediate use of force was necessary to defend that other person against that danger.' "
Here, the record is silent on trial counsel's reasons for not requesting the pinpoint instruction and she may have had a satisfactory explanation. Trial counsel might have reasonably concluded that the jury instructions given by the trial court adequately set forth the applicable law. The jury was instructed that a defendant acts in lawful self-defense or defense of another when "the defendant reasonably believed that he or someone else was in imminent danger of suffering bodily injury" and "the defendant reasonably believed that the immediate use of force was necessary to defend against that danger." These instructions focused on defendant's reasonable beliefs, not those of Bright. Since there was some evidence that defendant provoked the fight, the jury was also instructed that he did not have the right to self-defense if he "provoke[d] a fight or quarrel with the intent to create an excuse to use force." We presume, in the absence of evidence to the contrary, that the jury understood and followed the trial court's instructions. (People v. Fauber (1992) 2 Cal.4th 792, 823 (Fauber).) In our view, since none of the instructions referenced whether Bright could have acted in lawful self-defense, no reasonable juror would have understood that he or she was required to find that Bright had a lawful right to self-defense before determining that defendant acted in lawful defense of Bright. Thus, trial counsel was not incompetent for failing to request a pinpoint instruction.
Defendant's reliance on People v. Randle (2005) 35 Cal.4th 987 (Randle), overruled in part on other grounds in People v. Chun (2009) 45 Cal.4th 1172, 1201, is misplaced. In Randle, the defendant was charged with murder and argued that the trial court erred in denying his request to instruct the jury on the doctrine of imperfect defense of others. (Randle, at p. 994.) The Randle court analogized imperfect defense of others to imperfect self-defense: "[T]he doctrine of imperfect defense of others 'follows logically from the interplay between statutory and decisional law.' [Citation.] The doctrine is based on statute in that (1) malice is required for murder (§ 187) and (2) perfect self-defense and perfect defense of others are complete defenses to charges of murder (§ 197). One who kills in imperfect self-defense—in the actual but unreasonable belief he must defend himself from imminent death or great bodily injury—is guilty of manslaughter, not murder, because he lacks the malice required for murder. [Citations.] For the same reason, one who kills in imperfect defense of others—in the actual but unreasonable belief he must defend another from imminent danger of death or great bodily injury—is guilty only of manslaughter." (Id. at pp. 996-997, italics omitted.) It was in this context that the Randle court rejected the Attorney General's argument that a defendant " 'steps into the shoes of the person defended' " for purposes of evaluating a claim of imperfect defense of others. (Id. at pp. 993-1004.) The Randle court did not consider the issue before us, that is, whether a reasonable juror could have interpreted CALCRIM Nos. 3470 and 3472 to conclude that a defendant has no lawful right to defend another because that individual initiated the fight.
B. Prosecutorial Misconduct
Defendant contends that the prosecutor committed misconduct during argument.
Defendant notes that the Attorney General has used the term prosecutorial error rather than misconduct, because "there is no evidence the prosecutor intentionally or knowingly committed misconduct" in this case. Defendant submits that "some intent or knowingness can be imputed on the prosecution when it makes arguments in closing that have been explicitly censured by the California courts." Though we find no evidence in the record that the prosecutor knowingly committed misconduct, we will use the term misconduct as used by defendant in his contentions.
In order to preserve a claim of prosecutorial misconduct on appeal, " ' "a defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the improper argument." ' [Citation.] A failure to 'object and request an admonition will be excused if doing either would have been futile, or if an admonition would not have cured the harm.' [Citation.]" (People v. Mendoza (2016) 62 Cal.4th 856, 905.)
Here, defendant failed to make any objections during the prosecutor's argument. He claims, however, that any objection would have been futile. Defendant points out that the trial court overruled his counsel's repeated objections to the prosecutor's unduly aggressive cross-examination of him. The record does not support his claim. Trial counsel objected three times during the prosecutor's cross-examination of defendant. Trial counsel first objected to a question by the prosecutor on the ground that it was "[a]rgumentative." The objection was overruled. The trial court also overruled trial counsel's objection that the prosecutor's question had been "[a]sked and answered several times." The trial court later sustained trial counsel's objection that the prosecutor's question "[s]tates facts not testified to." That the trial court overruled two defense objections to the prosecutor's cross-examination of defendant does not establish that an objection to prosecutorial misconduct during argument would have been futile. Thus, the issue has been forfeited.
Alternatively, defendant contends that trial counsel was ineffective for failing to object to prosecutorial misconduct.
In order to prevail on this claim, defendant must show that trial counsel's performance was deficient and that " 'counsel's deficiencies resulted in prejudice, that is, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." [Citation.]' [Citation.]" (Lopez, supra, 42 Cal.4th at p. 966.)
" ' "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. Gray (2005) 37 Cal.4th 168, 215-216.) "A prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence, including reasonable inferences or deductions that may be drawn from the evidence. [Citation.]" (People v. Ledesma (2006) 39 Cal.4th 641, 726.) "When the issue 'focuses on 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.' [Citations.]" (People v. Cole (2004) 33 Cal.4th 1158, 1202-1203.) " 'In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]' [Citation.]" (People v. Brown (2003) 31 Cal.4th 518, 553-554.)
Defendant contends that the prosecutor committed misconduct in his discussion of the reasonable doubt standard. He first focuses on the prosecutor's discussion of the elements of assault with a deadly weapon. As to the third element, the prosecutor argued: "What's the third element. Probably not going to be too much of a discussion on this, but a reasonable man is aware that the use of that weapon would likely lead to the touching. It's not required that he intend to hurt anybody. It's not required that he intend to do anything. It's not required that he actually hurt anybody. What is this element about? [¶] It's about a reasonable person. It's not about an angry man in a parking lot. Think about a father with his son at a baseball game. Think about a father at a Giant's game wearing a Giant's hat and somebody . . . wearing a Dodger's hat from 50 feet away says something about the Giant's not doing very well this year. What's that man going to do? Does that man think that if he charges over with a knife at that guy something bad might happen? It's a reasonable person. [¶] Most importantly, it's your common sense. I said this a number of times, and I'm going to say it a number of times more. That's why we're here. Because we got 14 people who have common sense. We have 14 people who have life experience. We have 14 people who know the difference between speculation and reasonable doubt. We have 14 people who aren't going to be confused that reasonable doubt is some impossibility. It's common sense."
Defendant challenges only the last paragraph and argues that the prosecutor's reference to common sense "asked the jurors to fill in the gaps in the prosecution's case with the jurors' own faulty heuristics and assumptions." We do not interpret the prosecutor's comments as inviting the jurors to supply facts that have not been proved. Instead, he reminded them to use their common sense in evaluating the evidence. As defendant acknowledges, jurors may rely on common sense in deciding the accuracy of testimony. (CALCRIM No. 226 ["In deciding whether testimony is true and accurate, use your common sense and experience."] Since there was no error, trial counsel did not render ineffective assistance when she did not object to the prosecutor's comments.
The prosecutor also argued: "Now one example that I sometimes use is, let's say we were doing a jury trial where the issue was what state are we talking about. You have a witness who comes in and says, Yeah. It's a state. It's just to the west of this other state that has gambling where you can go and lose your money and stay there for a weekend. And another witness comes in and says, Yeah. There's a city in that state called Fran something or San something. It's really beautiful. It has this really pretty bridge. Another witness comes in and says, Yeah. There's this city in the south where all these famous people hang out. There's a big Hollywood sign. There's a walk of fame. Someone says, Yeah. There's another beautiful city call San Diego up in the north. And right there, you have some information that's incorrect. You have some information that's incomplete. Nobody talked about Palo Alto. You have some information that's accurate. Make no mistake about it. That's what we had here. [¶] You don't need every single piece of the puzzle. What you need is the one witness who will, and Hugo Sanchez [Juarez] seeing that knife. That's it. Hugo Sanchez [Juarez] getting stabbed in the arm from a man who charges over with his knife out in a fight that he started."
Relying on People v. Centeno (2014) 60 Cal.4th 659 (Centeno) and People v. Otero (2012) 210 Cal.App.4th 865 (Otero), defendant argues that the prosecutor's hypothetical regarding the state of California diminished the reasonable doubt standard.
In Centeno, supra, 60 Cal.4th 659, the prosecutor used a diagram depicting the outline of the state of California and asked the jury to consider a hypothetical criminal trial. (Id. at p. 664.) The prosecutor argued: " 'Let me give you a hypothetical. Suppose for me that there is a trial, and in a criminal trial, the issue is what state is this that is on the [overhead projector]. Say you have one witness that comes in and this witness says, hey, I have been to that state, and right next to this state there is a great place where you can go gamble, and have fun, and lose your money. The second witness comes in and says, I have been to this state as well, and there is this great town, it is kind of like on the water, it has got cable cars, a beautiful bridge, and it is called Fran-something, but it is a great little town. You have another witness that comes in and says, I have been to that state, I went to Los Angeles, I went to Hollywood, I saw the Hollywood sign, I saw the Walk of Fame, I put my hands in Clark Gable's handprints in the cement. You have a fourth witness who comes in and says, I have been to that state. [¶] What you have is you have incomplete information, accurate information, wrong information, San Diego in the north of the state, and missing information, San Bernardino has not even been talked about, but is there a reasonable doubt that this is California? No. You can have missing evidence, you can have questions, you can have inaccurate information and still reach a decision beyond a reasonable doubt. What you are looking at when you are looking at reasonable doubt is you are looking at a world of possibilities. There is the impossible, which you must reject, the impossible [sic] but unreasonable, which you must also reject, and the reasonable possibilities, and your decision has to be in the middle. It has to be based on reason. It has to be a reasonable account. And make no mistake about it, we talked about this in jury selection, you need to look at the entire picture, not one piece of evidence, not one witness. You don't want to look at the tree and ignore the forest. You look at the entire picture to determine if the case has been proven beyond a reasonable doubt.' " (Id. at pp. 665-666, fn. omitted.)
The court in Centeno relied, in large part, on the case of Otero, supra, 210 Cal.App.4th 865. (Centeno, supra, 60 Cal.4th at pp. 668-669.) In Otero, the reviewing court disapproved of the prosecutor's use of a diagram which was similar to the one used in Centeno to illustrate the reasonable doubt standard. In Otero, the words " ' "No Reasonable Doubt" ' " were at the top of the diagram. (Centeno, at p. 668.) The diagram depicted the outlines of California and Nevada. There was a dollar sign in southern Nevada and the word " ' "Ocean" ' " was printed to the left of California. (Ibid.) San Diego was printed in the northern part of California and below San Diego was a star with the word " ' "Sac." ' " (Ibid.) Below that was San Francisco and Los Angeles was further south. (Ibid.) The bottom of the diagram stated: " ' "Even with incomplete and incorrect information, no reasonable doubt that this is California." ' " (Ibid.) The prosecutor used the diagram and argued: " ' "I'm thinking of a state and it's shaped like this. And there's an ocean to the left of it, and I know that there's another state that abuts this state where there's gambling. Okay. And this state that I'm thinking about, right in the center of the state is a city called San Francisco, and in the southern portion of the state is a city called Los Angeles. And I think the capital is Sac-something. And up at the northern part of the state there's a city called San Diego. I' m just trying to figure out what state this might be." [¶] "Is there any doubt in your mind, ladies and gentlemen, that that state is California? Okay. Yes, there's inaccurate information. I know San Diego is not at the northern part of California, and I know Los Angeles isn't at the southern. Okay. But my point to you in this—" ' " (Id. at pp. 668-669.) After defense counsel objected, the trial court sustained the objection, instructed the jurors to disregard the diagram, and referred them to the jury instructions defining reasonable doubt. (Id. at p. 669.) The Otero court concluded that the prosecutor's argument was improper, because the "outline of California itself was so readily identifiable that the jurors would have known what they were looking at based on the graphic alone, encouraging them to jump to a conclusion." (Ibid.)
The Centeno court agreed with Otero: "The use of an iconic image like the shape of California . . . , 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" and encourage "jurors to guess or jump to a conclusion." (Centeno, supra, 60 Cal.4th at p. 669.) The Centeno court further explained that when the prosecutor began with the outline of California, "[s]he did not posit that the outline had been established by any evidence; it was simply presented as a given. The essential question, '[W]hat state is this[?],' began with an important factor presumed: that the outline was, indeed, the depiction of a state. In these two respects, the hypothetical invited the jury to jump to a conclusion before the prosecutor recounted any other hypothesized 'evidence.' [Citation.] The prosecutor did go on to mention other 'evidence,' and urged the jury to 'look at the entire picture.' However, the most important part of her hypothetical, the visual aid showing the shape of California, was not supported by evidence admitted during the imaginary trial and was also irrefutable. [¶] Additionally, the hypothetical was misleading because it failed to accurately reflect the evidence in this case, which was far from definitive." (Id. at p. 670, fn. omitted.)
The present case is distinguishable from Centeno and Otero. Though the prosecutor used a similar hypothetical, he did not refer to the reasonable doubt standard in his discussion of the hypothetical. When he did discuss the reasonable doubt standard during argument, he used language very similar to that codified in Penal Code section 1096. The prosecutor argued: "And then, lastly, that reasonable doubt somehow means impossible doubt. And it doesn't. Reasonable doubt is simply proof that leaves you with an abiding conviction. Everything in life is open to some doubt. This is not engineering. This not some drilling it down to some null hypothesis. This is everything in life is possible to have some possible doubt." Thus, there is no reasonable likelihood that the jurors would have interpreted the prosecutor's hypothetical as an attempt to lessen the prosecution's burden of proof. (People v. Friend (2009) 47 Cal.4th 1, 29 [question is " ' "whether there is a reasonable likelihood that the jury construed or applied any of the complained of remarks in an objectionable fashion" ' "].) Moreover, unlike in Centeno and Otero, here, the prosecutor did not use a visual outline of California. The image used in those cases was improper, because the outline had not been established by the evidence presented in the hypothetical. Here, without the visual image, the jurors were not invited to jump to a conclusion as to defendant's guilt prior to considering other hypothesized evidence. Accordingly, trial counsel did not render ineffective assistance by failing to object to this portion of the prosecutor's argument.
Penal Code section 1096 defines reasonable doubt as " 'not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.' "
Defendant next contends that the prosecutor committed misconduct when he misstated the law on self-defense.
The prosecutor argued: "Now, when we go through self-defense, think about what self-defense is saying. Self-defense is saying you are excused from committing a crime. But for self-defense, this would be a crime. You are excused from using an amount of violence that we do not accept in our community. But we are excusing you under this very limited purpose." In explaining the jury instructions as to self-defense, the prosecutor further stated that "the jury instructions are nothing more than the human experience born into words."
Relying on People v. Lloyd (2015) 236 Cal.App.4th 49 (Lloyd), defendant contends that the prosecutor "played on the common misconception that 'not guilty' finding means that a defendant is innocent and his actions are socially condoned." He further contends that the prosecutor misstated the law by implying that it was defendant's burden to establish self-defense or defense of others.
In Lloyd, supra, 236 Cal.App.4th 49, the prosecutor stated during closing argument, " 'If you find there is self-defense, you are saying his actions, the defendant's conduct was absolutely acceptable.' " (Id. at p. 62.) The trial court overruled defense counsel's objection to the statement. (Ibid.) The Lloyd court explained that the prosecutor had misstated the law, because the defendant need not establish " ' "self defense by evidence sufficient to satisfy the jury that the self defense was true, but if the evidence is sufficient to raise a reasonable doubt as to whether the defendant was justified, then he is entitled to an acquittal." ' [Citation.]" (Ibid.) The prosecutor also argued in rebuttal, " 'And he talks about, you know, voting not guilty is not saying that you condone his behavior. Well, what does not guilty mean? It means you didn't commit a crime.' " (Ibid.) The Lloyd court found that this was also a misstatement of the law, because a "not guilty verdict is not the equivalent of finding the defendant innocent. [Citation.]" (Ibid.) The Lloyd court concluded that the error was prejudicial. It reasoned that when the trial court overruled the defense objection it "placed its considerable weight behind the misstatement," and thus it could not presume that the jurors followed the jury instructions, and it was a close case. (Id. at p. 63.)
Defendant argues that the jurors in the present case understood the prosecutor's comments as conveying the message: (1) "the prosecution had already established the guilt of [defendant], and any claims of self-defense were mere excuse or subterfuge, proof of the sufficiency of which would fall" on defendant; (2) "if the jury gave weight to [defendant's] testimony as to self-defense, it would be condoning [defendant's] actions in a way that violated societal norms;" and (3) the jury could "supplant[] legal standards with personal or community standards of morality." (Italics omitted.)
Even assuming a reasonably competent attorney would have objected to these statements by the prosecutor, defendant has failed to establish prejudice. Here, unlike in Lloyd, supra, 238 Cal.App.4th 49, the trial court did not condone the prosecutor's remarks. The trial court also properly instructed the jury regarding the prosecution's burden to prove the defendant did not act in self-defense or defense of others, that it could base its verdict "only on the evidence that ha[d] been presented . . . in this trial," that if the jurors "believe[d] that the attorney['s] comments on the law conflict[ed] with the court's instruction," they were required to follow the court's instructions, and that "[u]nless the evidence prove[d] the defendant guilty beyond a reasonable doubt, he [was] entitled to an acquittal and [they] must find him not guilty." Since there is no evidence to the contrary, we presume that the jury understood and followed the trial court's instructions. (Fauber, supra, 2 Cal.4th at p. 823.) Thus, defendant has failed to establish a reasonable probability that, but for trial counsel's unprofessional error, the result would have been more favorable to defendant. (Lopez, supra, 42 Cal.4th at p. 966.)
Relying primarily on People v. Shazier (2014) 60 Cal.4th 109 (Shazier), defendant also contends that the prosecutor committed misconduct when he "impermissibly implied to the jurors that they would face censure from their friends and family if they failed to find [him] guilty."
The prosecutor argued: "This isn't some sort of theoretical exercise. So think about when you go home and you finally get to talk to your friends and family about what you've been doing for the last three-and-a-half weeks. You'll get to tell them I sat on a trial. And there was a video that showed the guy charging over. There was testimony that said he had a shiny object in his hand. And there was a man who got stabbed really badly in the arm. And then, the man who stabbed him really badly in the arm tries to say that it's self-defense. [¶] That's what you're going to explain. And think about whether or not you'll be able to explain under any common sense . . . , that self-defense is actually applicable, that the testimony from Justin Bright, Anthony Ostroskie and the defendant actually comports with what you saw on the video or the physical evidence of blood at the scene. This is what it is. It's this little Venn diagram -- the facts, the law, your common sense."
In Shazier, supra, 60 Cal.4th 109, a trial was held on whether the defendant should be confined for treatment as a sexually violent predator (SVP). On appeal, the defendant claimed, among other things, that the prosecutor committed misconduct when he referred to a potential negative response by the community to the jury's verdict. (Id. at p. 143.) The court summarized the prosecutor's argument: "In his rebuttal argument, over two defense objections, the prosecutor told the jurors they would soon be released from their oath of silence, and could choose to talk to family and friends about the case. If they did so choose, the prosecutor suggested, they would 'have to explain . . . what [they had] been doing for the last two and a half or three weeks.' The prosecutor then posited how such a conversation might proceed if the SVP allegations were found not true. He suggested a juror might have difficulty explaining such a verdict in response to questions about the case from these other persons. After learning the matter concerned an SVP commitment petition, the prosecutor proposed, they might ask whether there was evidence defendant had never offended in the past, and the juror would be forced to disclose the evidence of defendant's repeated sex offenses. They might then suggest the jury must have heard from a 'top notch, really credible, and believable' defense psychologist, and the juror would have to concede only the 'incredible' Dr. Donaldson testified in defendant's behalf. Finally, they might assume the jury relied on the fact defendant had not molested anyone in a long time, as evidence he was a changed man, whereupon the juror would have to acknowledge 'there [had not] been any teen-agers around' during this period." (Id. at p. 143.)
The Shazier court acknowledged that the prosecutor's "rhetorical use of a hypothetical conversation with nonjurors" is permissible where it "might be seen simply as an effort to convince the jurors they would have intellectual difficulty justifying or explaining a 'not true' verdict." (Shazier, supra, 40 Cal.4th at p. 144.) However, the court also noted that though the less-damaging interpretation of the prosecutor's statements "may have been one purpose of the prosecutor's arguments," the prosecutor "could easily and effectively have made similar points without such extensive and focused allusions to a circumstance the jurors were expressly instructed to disregard—the potential community reaction." (Id. at p. 145.) The Shazier court concluded that the prosecutor had committed misconduct. (Ibid.)
Here, the prosecutor initially referred to possible future conversations between the jurors and their friends or family about the trial. He then summarized the prosecution evidence and asked the jurors to think about whether they would "be able to explain under any common sense . . . , that self-defense is actually applicable, that the testimony from Justin Bright, Anthony Ostroskie and the defendant actually comports with what [they] saw on the video or the physical evidence of blood at the scene." Thus, the present case is distinguishable from Shazier, because the prosecutor's argument focused on the evidence rather than the community reaction to a not guilty verdict. Accordingly, trial counsel was not incompetent for failing to object to this portion of the prosecutor's argument.
The cases of People v. Purvis (1963) 60 Cal.2d 323 (Purvis) and Trillo v. Biter (9th Cir. 2014) 769 F.3d 995 (Trillo), are also distinguishable from the present case. In Purvis, the local newspaper published an article about the high crime rate in the community shortly before argument was held. The article discussed the parole system and the sheriff "was quoted as saying, 'We are trying a case now that has been in our courts four years simply on the penalty that the fellow was to receive. It's not guilt or innocence, simply the penalty. He has been sentenced twice to death and each time the higher courts in this state have overthrown it on a technicality. . . . This fellow . . . this Tommy Purvis, he has killed two women, one of them after he was paroled.' " (Purvis, at pp. 333-334.) During argument, the prosecutor referred to the article and stated that it contained "remarks about the parole system which should in itself impress upon you jurors that those outside that are not part of this jury have their eyes focused upon you just to see what you are going to do with a man who has been convicted in a seven-year span of two murders. [Fn. & italics omitted.]" (Purvis, at p. 336.) The court stated that "[a] warning of probable consequences of failure to convict, and of the unfavorable reactions of neighbors is improper [citation]." (Id. at p. 342.) Thus, the court concluded that "[t]o call the article to the attention of the jury was misconduct. To inferentially authorize the jury to read it was prejudicial error." (Ibid.) In contrast to Purvis, there was no such reference to the unfavorable reactions of friends or family.
Purvis, supra, 60 Cal.2d 323 was overruled on other grounds in People v. Morse (1964) 60 Cal.2d 631.
In Trillo, supra, 769 F.3d 995, the prosecutor defined " 'reasonable doubt' as 'something that makes you comfortable with your decision today,' so that each member of the jury could 'go explain to it to your neighbor next day, conversation, explain the decision.' " (Id. at p. 1000.) After discussing the facts of the case, the prosecutor proposed that jurors would explain to their neighbors, " 'gosh, we got the instructions about reasonable doubt, and we walked him. Your neighbor's going to be, you did what? And you're going to be very uncomfortable.' " (Ibid.) The Trillo court found prosecutorial misconduct, because "jurors should not be urged to vote to convict simply because they might be uncomfortable with a vote to acquit." (Id. at p. 1001.) Unlike in Trillo, the prosecutor did not refer to the negative reaction of the community.
C. Personal Weapon Use Enhancement
Defendant contends that the trial court "erroneously imposed the knife-use enhancement ([Pen. Code,] § 12022, subd. (b)(1)) on [his] conviction for assault with a deadly weapon ([Pen. Code,] § 245, subd. (a)(1)), because personal weapon use is an element of [Penal Code] section 245, subdivision (a)(1)."
At the sentencing hearing, the trial court stated: "Even though the imposition of sentence is being suspended and Mr. Chacon is not sentenced now, I do want to add that under that section, Penal Code section 12022(b)(1), that would not actually be imposed, that enhancement, because under that section, the additional punishment is only applied, unless use of a deadly or dangerous weapon is an element of the offense. And, of course, the use of the knife was an element of Count 1, the count that the jury found Mr. Chacon guilty of. [¶] So even though we're not imposing sentence, I do have to make sure that that enhancement would not be imposed, even if this were a sentencing under that provision."
Since the trial court suspended imposition of sentence and granted defendant probation, defendant's claim that the trial court imposed an unauthorized sentence is without merit.
D. Probation Condition
The trial court imposed the following probation condition: "During the period of probation, you shall not possess or consume alcohol or illegal controlled substances."
Defendant contends that this probation condition is unconstitutionally vague and must be modified to include a knowledge requirement.
"[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' [Citation.] The rule of fair warning consists of 'the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders' [citation], protections that are 'embodied in the due process clauses of the federal and California Constitutions. [Citation.]' [Citation.]" (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).) "A probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness. [Citation.]" (Ibid.)
In People v. Rodriguez (2013) 222 Cal.App.4th 578, the defendant challenged as unconstitutionally vague and overbroad a probation condition that she " '[n]ot use or possess alcohol, intoxicants, narcotics, or other controlled substances without the prescription of a physician . . . .' " (Id. at p. 592.) This court concluded that "a scienter element is reasonably implicit in this condition" with respect to controlled substances. (Id. at p. 593.) However, this court also recognized that the probation condition was not limited to substances regulated by statute. (Id. at p. 594.) This court ordered the condition be modified to add an express knowledge requirement to "eliminate any potential for vagueness or overbreadth in applying the condition." (Ibid.) The Attorney General takes the position that the knowledge requirement is implied in the probation condition, but does not oppose a modification of the condition to add a knowledge requirement. Accordingly, we will order that the condition be modified.
The California Supreme Court has granted review in two cases presenting similar issues. The issue of whether a stay-away order condition must be modified to explicitly include a knowledge requirement is pending in In re A.S. (2014) 227 Cal.App.4th 400, review granted September 24, 2014, S220280. In People v. Hall (2015) 236 Cal.App.4th 1124, review granted September 9, 2015, S227193, the issue is whether an explicit knowledge requirement is constitutionally mandated for a drug condition.
III. Disposition
The alcohol condition is modified to read: "During the period of probation, you shall not knowingly possess or consume alcohol or illegal controlled substances." As modified, the order is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.