Opinion
E065846
05-23-2018
THE PEOPLE, Plaintiff and Respondent, v. CURTIS JACKSON, Defendant and Appellant.
Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB1501377) OPINION APPEAL from the Superior Court of San Bernardino County. Dwight W. Moore, Judge. Affirmed in part with directions; reversed in part. Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant, Curtis Jackson, and an accomplice attempted to rob a medical marijuana dispensary. In the process, the dispensary's security guard was shot dead. Defendant appeals from the judgment entered following jury convictions for murder (Pen. Code, § 187, subd. (a); count 1) and attempted robbery (§§ 664, 211; count 2). As to both counts, the jury also found true allegations that defendant personally discharged a firearm causing death (§ 12022.53, subd. (d)), and was a principal armed with a handgun (§ 12022, subd. (a)(1)). The trial court sentenced defendant to 50 years to life in state prison. Codefendant, Tomeise Michelle Ray (Ray), was also charged with murder and attempted robbery, but was acquitted.
Unless otherwise noted, all statutory references are to the Penal Code. --------
Defendant contends the trial court abused its discretion in allowing testimony mentioning defendant's gang nickname. Defendant also argues the trial court erred in denying his motion for a mistrial based on the prosecutor eliciting prejudicial testimony from the arresting officer, revealing the officer had had frequent contacts with defendant while the officer was assigned to a gang task force unit. In addition, defendant argues the prosecutor misstated the reasonable doubt burden of proof, and defense counsel's failure to object constituted ineffective assistance of counsel (IAC). Defendant further asserts the trial court incorrectly stated defendant's sentence on count 2, misstated the amount of the court security fee, and incorrectly awarded defendant 354 days, rather than 356 days, of presentence custody credits.
We conclude the trial court did not abuse its discretion in allowing testimony mentioning defendant's gang nickname or in denying defendant's mistrial motion. We also conclude that the prosecutor's statement regarding the burden of proof does not constitute prejudicial error. We further reject defendant's assertion there was cumulative error. The judgment of conviction is therefore affirmed, but defendant's sentence is reversed as to count 2 and modified as to fees and custody credits.
II
FACTUAL BACKGROUND
On February 16, 2015, about 9:30 p.m., volunteers B.V. and J.E. assisted customers at the House of OG medical marijuana dispensary (dispensary) in the City of San Bernardino. A former volunteer, J.P., entered the dispensary to pick up her marijuana order around 9:40 p.m. She volunteered to assist B.V. and J.E. with the last of the customers for the evening. Anthony Pineda, the security guard, was at the front of the dispensary by the window. He checked patrons for a valid identification and medical marijuana recommendation before permitting entry.
As B.V. and J.E. were closing the dispensary around 10:00 p.m., and J.P. was getting her order, there was a loud bang on the door that sounded like someone trying to kick in the door. B.V. was in the back room of the dispensary restocking, and J.E. and J.P. were in the "bud room" where customers normally selected their marijuana. The last of the customers had left. Two men burst in the door to the bud room. J.P. heard an unfamiliar voice call out, "We're in, bro, we're in." J.P. saw a tall, dark-skinned male, in a dark hooded zip-up sweater and sunglasses rush in, turn towards Pineda, and start shooting at Pineda. The man was about six feet tall and thin. J.P. dropped to the floor. J.P. testified the incident lasted just seconds.
When the men burst in, J.E. was walking toward the back room. He looked over his shoulder and saw the gunman pointing a shiny chrome gun slightly up in the air. The gunman told everyone to "get down." J.E. quickly walked to the back room and hid in the bathroom until the gunfire stopped.
B.V. and J.E. heard seven or eight gunshots that sounded like firecrackers, and heard someone say, "I got hit" or "I'm hit." B.V. fled out the back door along with J.E. and J.P. They ran to a nearby gas station and asked the store attendant to call 911. A few minutes later, J.A., who was J.P.'s boyfriend and the dispensary manager, arrived at the gas station. J.P., J.E., and B.V. got in his car and returned to the dispensary to talk to the police.
The dispensary was located in the same strip mall as the Internet Café. M.S. was the manager of the Internet Café. He was familiar with the people who were "regulars or would hang out around the area." Around 10:00 p.m., while M.S. and S.G. were talking and smoking cigarettes in front of the Internet Café, they heard gunfire. M.S. noticed the dispensary "lighting up inside." M.S. saw flashes coming from inside the dispensary, and saw two people run out of the dispensary and through the mall parking lot towards M.S. The two were separated by some distance. Both were wearing "dark clothing, hoodies, [and] sweaters." M.S. did not hear the first person, who was in the lead, say anything. He also did not appear to be carrying anything. The second person was around five feet behind the first person limping. M.S. heard him say, "Yo, I got hit." It looked like his left leg was injured.
M.S. and S.G. tried to stop the two men. The second man pulled out a gun and said to get back. M.S. and S.G. withdrew. S.G. testified that the leg of the second person was gushing blood. S.G. heard him say to the first person, "I'm hit. I'm hit." S.G. yelled at him, "[t]hat's what the . . . you get." The second person pointed a gun at S.G. and M.S. and said to "get back." S.G. ducked behind a car. I.V., who was standing in the Internet Café doorway, testified she saw the two men run through the parking lot. She also saw a sedan circling the parking lot at that time.
After the two men were out of sight, M.S. and S.G. ran to the dispensary. M.S. and S.G. kicked open the bud room door, and found Pineda on the ground, in a pool of blood, gasping for breath. Pineda died minutes later from multiple gunshot wounds to his chest and heart. Officer Ortiz from the San Bernardino Police Department found Pineda in the main dispensary room motionless on the floor.
About 11:40 p.m. the night of the shooting, Los Angeles Police Department (LAPD) Officer Oronoz was dispatched to California Hospital in the City of Los Angeles, to investigate a shooting. Officer Oronoz arrived about 12:30 a.m. He found defendant in the emergency room lying on a gurney. Defendant told Officer Oronoz, he was shot while at Saint Andrews Park in Los Angeles about 10:00 p.m. Defendant said a Chevrolet Impala pulled up, two men stepped out, and they "hit him up." The men opened fire and defendant ran. After defendant realized he had been shot in the leg, an unknown woman drove him to the hospital. Officer Oronoz testified there was no evidence of such a shooting. According to Officer Oronoz, it takes about an hour and a half to drive from San Bernardino to California Hospital.
During the crime scene investigation, seven expended nine-millimeter casings and a Ruger nine-millimeter handgun were found. Blood was found in the strip mall parking lot and on broken glass from the dispensary's front door. DNA from the blood was compared with a sample of defendant's DNA. The test results showed a high probability that the blood was from defendant.
On April 21, 2015, San Bernardino Police Officer Cunningham learned defendant was a potential suspect in the dispensary murder based on a DNA lab notice. The next day, LAPD Officer Beck arrested defendant near Saint Andrews Park. That same day, San Bernardino Police Officers Cunningham and Granado contacted Ray at the 77th Street LAPD headquarters. Ray was sitting in defendant's Chevrolet Equinox car. Officer Granado told Ray defendant had been arrested for murder in San Bernardino and his car, the Equinox, was being impounded. The Equinox was transported to the San Bernardino police station. Blood was found on the rear passenger seat.
Before Ray was taken into custody, defendant called her from jail. Defendant was recorded telling Ray he had taken another male to the dispensary on February 16, 2015, but he did not have a gun or shoot anyone.
From May to July 2015, C.D. lived in the same house where Ray was living with her son, fathered by defendant. Ray moved out of the house after she got in a physical fight with C.D. C.D. testified that before she moved into the house, Ray had told her defendant had been injured in a shooting. Ray further said that defendant, Ray, and another person went to a medical shop to rob it. During the robbery guns were fired and defendant was shot in the leg. Afterwards, they drove to a hospital in Los Angeles. Dispensary security guard, C.N., testified that defendant was a frequent customer at the dispensary. C.N. was not working or present at the dispensary during the shooting incident.
III
ADMISSIBILITY OF GANG NICKNAME TESTIMONY
Defendant contends the trial court abused its discretion in allowing the prosecutor to inquire whether J.E. was familiar with the nickname, Tiny Far West Blue. We disagree.
Before trial, the prosecution moved in limine to admit into evidence two statements by J.E., which allude to defendant being a gang member. The trial court ordered redaction from the two statements of all such references to defendant's gang membership. The court based its ruling on there being no gang-related charges against defendant. The court therefore concluded any references to defendant being a gang member were unduly prejudicial.
During cross-examination, defense counsel asked J.E. if the name Curtis (defendant's first name) sounded familiar. J.E. responded that he was not familiar with any customer by that name. After the defense finished its direct examination of J.E., the prosecutor, in camera, informed the court he intended to ask J.E. on redirect if he was familiar with defendant's nickname, Tiny Far West Blue, because many of the people at the dispensary used nicknames. The prosecutor argued that if J.E. testified he was unfamiliar with defendant's nickname, the testimony would refute defendant's contention that defendant was a regular customer. In response to the court asking how the prosecutor knew defendant used the nickname, Tiny Far West Blue, the prosecutor told the court defendant had admitted it was his nickname, and the LAPD knew of defendant's nickname through numerous contacts with him. Defense counsel argued testimony regarding defendant's gang nickname should be excluded under Evidence Code section 352 as unduly prejudicial gang evidence and irrelevant.
The trial court noted: "We have nicknames of Bree, Jazzy, and Jeezy, and Cheddar, and I don't know how many more names we're going to hear about. You did ask if he recognizes the name Curtis and he said no, that if Mr. Imes [the prosecutor] has evidence that the defendant admits that he is known by that name, I think it is fair for him to inquire whether he's familiar with that nickname." The court further stated that there was nothing identifying defendant's nickname, Tiny Far West Blue, as a gang nickname. The prosecutor told the court that he only intended to ask J.E. if he was familiar with the nickname. The court then overruled defendant's objection to the inquiry. During redirect examination, the prosecutor asked J.E. if he was familiar with the nickname Tiny Far West Blue. J.E. testified he was not familiar with it and had never heard of it before. J.E. was thereafter excused as a witness.
"[A]ll relevant evidence is admissible" (Evid. Code, § 351), relevant evidence being evidence "having any tendency in reason to prove or disprove any disputed fact" (Evid. Code, § 210). "The trial court has broad discretion to determine the relevance of evidence [citation], and we will not disturb the court's exercise of that discretion unless it acted in an arbitrary, capricious or patently absurd manner." (People v. Jones (2013) 57 Cal.4th 899, 947.) Evidentiary rulings under Evidence Code section 352 are reviewed under the abuse of discretion standard. (People v. Lee (2011) 51 Cal.4th 620, 642 (Lee).)
The trial court did not abuse its discretion in allowing the prosecutor to ask J.E. if he knew of any dispensary customer who used the nickname Tiny Far West Blue. The information requested was relevant to the issue of whether defendant was the perpetrator of the charged crimes. As defense counsel argued during closing arguments, defendant's theory was that he visited the dispensary regularly and was merely an innocent bystander caught in the crossfire, not the perpetrator who shot Pineda. J.E.'s testimony that he was not familiar with defendant's nickname was relevant because it undermined the defense theory by demonstrating J.E.'s lack of familiarity with defendant as a regular customer. In addition, the prosecutor's inquiry regarding defendant's nickname was appropriate because the defense had inquired during cross-examination as to whether J.E. knew anyone at the dispensary by the name of Curtis. As the trial court noted, others at the dispensary used nicknames. Therefore, it was reasonable to follow-up with a question as to whether J.E. knew of anyone who used defendant's nickname.
In Lee, supra, 51 Cal.4th 620, the defendant argued that, even if evidence of his gang nickname had some probative value, it should have been excluded under Evidence Code section 352. The defendant asserted that evidence of his nickname was unduly prejudicial because it suggested gang origins and prior criminal activity. The California Supreme Court in Lee rejected this argument: "We are not persuaded that defendant's nickname alone, without any evidence of gang membership, had a tendency to suggest he belonged to a gang when he shot [the victim]. However, assuming the nickname did imply either gang membership or prior criminal activity, the trial court did not abuse its discretion in admitting the nickname. The trial court carefully scrutinized the proffered evidence and concluded its prejudicial effect did not outweigh its probative value." (Lee, supra, at p. 644.) The Supreme Court further noted that any prejudice was minimized by the prosecutor avoiding any reference to the defendant's gang affiliation. (Ibid.)
Here, the prosecutor's inquiry regarding defendant's nickname made no reference to any gang involvement and did not even state that the nickname belonged to defendant. There was no gang evidence introduced that might have given the nickname a more sinister connotation. In addition, the inquiry regarding defendant's nickname concerned the highly relevant issue of defendant's identity as the perpetrator. Knowledge of a person's nickname reflects a familiarity with that person, and thus the strength of an identification. The trial court therefore did not abuse its discretion in allowing the brief inquiry regarding defendant's nickname. The testimony was relevant and not unduly prejudicial.
IV
DEFENDANT'S MOTION FOR MISTRIAL
Defendant contends the trial court abused its discretion in denying his motion for a mistrial, which was based on the prosecutor eliciting testimony from Officer Beck that while assigned to the gang unit, Officer Beck had had numerous contacts with defendant.
The People argue defendant forfeited his objection because defendant did not specifically raise a misconduct objection in the trial court and did not request a curative instruction. We conclude there was no forfeiture because defendant objected to Officer Beck mentioning he was assigned to a gang unit, and a curative instruction likely would have done more harm than good by drawing unwanted attention to Officer Beck's brief statement. (People v. Centeno (2014) 60 Cal.4th 659, 674 (Centeno).)
A. Procedural Background
The prosecution called Officer Beck to testify as to how defendant had changed his appearance (he grew his hair out) such that he was almost unrecognizable in April 2015. When the prosecutor preliminarily asked Officer Beck where he worked at the time of the charged crimes, Officer Beck said that he was assigned to the gang unit in the 77th Division of the LAPD. The prosecutor asked if Officer Beck was familiar with defendant. After Officer Beck responded that he was, defendant's attorney requested to approach the bench. Out of the presence of the jury, defense counsel objected to Officer Beck mentioning he was assigned to a gang unit. Defendant argues that the jury could infer from Officer Beck's statement he worked as a gang officer that defendant was in a gang. The prosecutor stated he did not intend to elicit gang evidence. He merely asked Officer Beck where he worked.
The trial court acknowledged it had ordered that there was to be no mention of defendant being a gang member. The court noted the order was not so broad as to encompass Officer Beck's statement that he was assigned to a gang unit. And there was no motion in limine requesting that Officer Beck not mention he was assigned to a gang unit. The court gave defendant the option of having the court give the jury an admonition not to give any significance to Officer Beck's job assignment, but noted that doing so would call attention to the testimony. Defense counsel stated defendant did not want a curative instruction.
In response to the court asking what defendant wanted the court to do to remedy the situation, defense counsel moved for a mistrial. The court denied the motion, finding there was insufficient prejudice caused by Officer Beck mentioning he was assigned to a gang unit. The court further stated it was broadening its previous order regarding gang testimony to preclude the prosecutor from eliciting any further reference to gangs from any witness.
B. Discussion
"We review the denial of a motion for mistrial under the deferential abuse of discretion standard. [Citations.] . . . . '"[A] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions."'" (People v. Cox (2003) 30 Cal.4th 916, 953.)
In this case, the trial court acted well within its discretion in finding that, although Officer Beck's testimony that he had worked in a gang unit violated the spirit of the trial court's original order indicating that there was to be no gang evidence introduced during the trial, the challenged testimony was unanticipated, brief, and relatively innocuous. Although Officer Beck testified he had had numerous contacts with defendant, there was no testimony defendant was in a gang. It is undisputed the trial court intended to exclude gang evidence because it was irrelevant and unduly prejudicial. Nevertheless, the trial court reasonably found the isolated comment did not justify a mistrial. We agree. Officer Beck's brief statement that he was assigned to a gang unit was not so egregious that it infected the entire trial. (People v. Merriman (2014) 60 Cal.4th 1, 70.)
V
REASONABLE DOUBT BURDEN OF PROOF
Defendant contends the prosecutor committed misconduct by misstating the reasonable doubt burden of proof, and his attorney was constitutionally ineffective for failing to object.
A. Procedural Background
Before closing argument, the trial court appropriately instructed the jury on the reasonable doubt burden of proof. (CALCRIM No. 220.) At the end of the prosecution's closing rebuttal argument, the prosecutor urged the jury to find defendant guilty beyond a reasonable doubt by telling the jury: "What I put to you, ladies and gentlemen, is this. If you're sitting here after hearing the Judge's instructions, counsels' arguments, my argument, and you sit in that back room and you begin the process of deliberation, and you say to yourself, I think he did it. I think she did it, then I've proved this case beyond a reasonable doubt. And that deliberative process should take place, and that deliberative process should end with you collectively saying guilty. Thank you." (Italics added.)
Defendant argues this argument impermissibly reduced the prosecution's burden by lowering the burden of proof to a mere belief defendant was guilty. Defendant asserts that because the statement was made during rebuttal, at the end of closing argument, and the trial court did not correct the misstatement of the burden of proof, the prosecutor's incorrect statement of the burden of proof constitutes prejudicial error.
B. Forfeiture
The People argue that defendant forfeited this issue by failing to object. Generally, "'[a] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety.'" (People v. Lopez (2008) 42 Cal.4th 960, 966; accord, Centeno, supra, 60 Cal.4th at p. 674.) A defendant's failure to object will be excused if objecting would have been futile or if an admonition would not have cured the harm caused by the misconduct. (Ibid.)
Here, the issue was forfeited because any misstatements regarding the burden of proof were curable by an admonition from the court. (Centeno, supra, 60 Cal.4th at p. 674.) Also, the prosecutor's argument was not so extreme or pervasive that a prompt objection and admonition would not have cured the harm. (Ibid.)
C. IAC
Defendant alternatively argues that, if this court concludes defendant forfeited the issue, his trial attorney committed IAC by not objecting to the prosecutor's misstatement of the reasonable doubt burden of proof during rebuttal. To secure the reversal of a conviction based on IAC, a defendant must show: (1) his counsel's performance was deficient when measured against the standard of a reasonably competent attorney and (2) counsel's deficient performance so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. The appellate court must presume counsel's conduct fell within the wide range of reasonable professional assistance and accord great deference to counsel's tactical decisions. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Lewis (2001) 25 Cal.4th 610, 674.) To establish prejudice, a defendant must show a reasonable probability that, but for counsel's failings, the result of the proceeding would have been more favorable to the defendant. (Strickland, supra, at p. 694.)
Further, because it is inappropriate for a reviewing court to speculate about the tactical reasons for counsel's actions, when the reasons are not readily apparent in the record, the court will not reverse unless the record discloses no conceivable tactical purpose. (People v. Lewis, supra, 25 Cal.4th at pp. 674-675.) If the record sheds no light on the reasons for counsel's actions, a claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
D. Misstating Reasonable Doubt Burden of Proof
"[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its . . . obligation to overcome reasonable doubt on all elements." (People v. Marshall (1996) 13 Cal.4th 799, 831; accord, Centeno, supra, 60 Cal.4th at pp. 666-667.) "To establish such error, bad faith on the prosecutor's part is not required." (Centeno, supra, at p. 666.)
"When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] 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.'" (Centeno, supra, 60 Cal.4th at p. 667.) Our high court has discouraged lower court attempts to explain the reasonable doubt standard but has stopped short "of categorically disapproving the use of reasonable doubt analogies or diagrams in argument. Rather, we assess each claim of error on a case-by-case basis." (Ibid.)
We agree the prosecutor misstated the reasonable doubt burden of proof when the prosecutor told the jury that if the jurors concluded, "I think he did it. I think she did it, then I've proved this case beyond a reasonable doubt. And that deliberative process should take place, and that deliberative process should end with you collectively saying guilty." (Italics added.) By giving this explanation of the burden of proof, the prosecutor risked misleading the jury by oversimplifying and trivializing the deliberative process. (Centeno, supra, 60 Cal.4th at p. 671.)
As explained by the court in Centeno, "[a[ jury may only decide the issue of guilt based on the evidence presented at trial, with the presumption of innocence as its starting point. Although the jurors may rely on common knowledge and experience in evaluating the evidence [citation], they may not go beyond the record to supply facts that have not been proved. Facts supporting proof of each required element must be found in the evidence or the People's burden of proof is unmet." (Centeno, supra, 60 Cal.4th at pp. 669-670, fn omitted.) It was thus misleading to tell the jurors that if they merely thought defendant committed the charged crimes, the prosecution had proved the case beyond a reasonable doubt. The statement encouraged the jury to decide whether defendant was guilty by improperly guessing and jumping to a conclusion. (Id. at p. 669.)
"The standard of proof is a measure of the jury's level of confidence. It is not sufficient that the jury simply believe that a conclusion is reasonable. It must be convinced that all necessary facts have been proven beyond a reasonable doubt." (Centeno, supra, 60 Cal.4th at p. 672.) "Reasonable doubt" is defined in section 1096 as "that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge." Here, the prosecutor left the jury with the misleading impression that, so long as the jurors "thought" defendant committed the charged crimes, regardless of their certainty or the weight of the evidence, the People had met their burden of proof.
Assuming the prosecutor's reasonable doubt remark was improper, defense counsel should have objected and requested the trial court to admonish the jury. The question here then becomes whether defense counsel's failure to object resulted in prejudice, that is, whether there was a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington, supra, 466 U.S. at p. 694.)
Relying on Centeno, defendant asserts the prosecutor's comments on the reasonable doubt burden of proof constitute prejudicial misconduct. In Centeno, the defendant was charged with molesting a young child. The prosecutor used a diagram showing the boundaries of California to explain during rebuttal the beyond-a-reasonable-doubt standard. (Centeno, supra, 60 Cal.4th at pp. 669-671.) The prosecutor also "implied that the People's burden was met if its theory was 'reasonable' in light of the facts supporting it." (Id. at p. 671.) The prosecutor told the jury that its essential task was to decide which version of the facts was true. The prosecutor argued that the defendant's testimony was unreasonable, and conversely that the People's burden was met if its theory was "reasonable" in light of the facts supporting it. (Id. at pp. 665-666.) The prosecutor suggested the prosecution had met its burden of proof by establishing it was "reasonable" to believe that defendant was guilty.
The Supreme Court in Centeno concluded the prosecutor's discussion of the burden of proof constituted misconduct and reversed the defendant's conviction. The Centeno court held the defendant had forfeited the burden of proof objection by not raising it in the trial court. Nevertheless, Centeno decided the issue in the context of the defendant's IAC objection to defense counsel failing to raise the burden of proof objection in the trial court. (Centeno, supra, 60 Cal.4th at pp. 674-678.) The Supreme Court in Centeno concluded counsel's failure to object constituted prejudicial IAC. The court explained that, considering the closeness of the case and the absence of any corrective action, "there is a reasonable probability that the prosecutor's argument caused one or more jurors to convict defendant based on a lesser standard than proof beyond a reasonable doubt." (Id. at p. 677.)
Centeno is distinguishable. Unlike the facts in Centeno, in this case the prosecutor did not use a diagram to describe the concept of reasonable doubt. (Centeno, supra, 60 Cal.4th at p. 664.) The prosecutor also did not confuse the concept of unreasonable inferences with the burden of proof to establish guilt beyond a reasonable doubt by suggesting "the jury could find defendant guilty based on a 'reasonable' account of the evidence." (Id. at p. 673.)
In addition, the trial court properly instructed the jurors on reasonable doubt and the People's burden of proof (CALCRIM Nos. 103, 220), that counsel's comments are not evidence (CALCRIM Nos. 104, 222), that they alone judge the credibility of the witnesses (CALCRIM Nos. 105, 226), that they must decide what the facts are and what happened based only on the evidence presented during the trial (CALCRIM No. 200), and that if an attorney's comments conflict with the jury instructions, the jury must follow the court's instructions (CALCRIM Nos. 200, 222). After closing argument, the court also instructed the jury that "[e]ach of you must decide the case for yourself, [from] your individual opinion after you fully and completely consider all the evidence with your fellow jurors." We generally presume the jurors understood and followed the court's instructions. (Centeno, supra, 60 Cal.4th at p. 676; People v. Mooc (2001) 26 Cal.4th 1216, 1234.)
The prosecutor's misstatement regarding the burden of proof was brief, and followed by proper jury instructions and a discussion of the evidence and the charges against defendant. Right before telling the jurors that, if they concluded, "I think he did it. I think she did it, then I've proved this case beyond a reasonable doubt" (italics added), the prosecutor told the jury "not [to] speculate, not think of things that may have happened or may not have happened, but analyze the evidence that's before you." In this context, it is not reasonably probable the jury disregarded the reasonable doubt burden of proof defined in the jury instructions. (CALCRIM Nos. 103, 220.)
Defendant has not demonstrated that the prosecutor's statement regarding reasonable doubt infected the trial with such unfairness as to make his conviction a denial of due process. (People v. Morales (2001) 25 Cal.4th 34, 44 ["[T]he question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion."].) Furthermore, when the remarks are considered in the context of the prosecutor's rebuttal argument as a whole, there is not a reasonable likelihood that the jury construed or applied the prosecutor's remarks in an objectionable fashion. (Ibid.; People v. Dennis (1998) 17 Cal.4th 468, 522 ["Although defendant singles out words and phrases, or at most a few sentences, to demonstrate misconduct, we must view the statements in the context of the argument as a whole."].)
Defendant argues defense counsel's failure to object to the prosecutor's misstatement of the reasonable doubt burden of proof was prejudicial because, had the misstatement not been made, the jury may not have found true the section 12022.53 personal gun use enhancement. Defendant asserts no one who witnessed the shooting identified him as the shooter, and there were two perpetrators. Defendant further argues that, although there was evidence defendant was present at the crime scene, he was merely a dispensary customer caught in the crossfire and, even if he was one of the perpetrators, there was no evidence as to which of the two perpetrators shot the security guard.
But the evidence that defendant fatally shot Pineda is overwhelming. There was evidence that witnesses saw the two perpetrators fleeing from the dispensary right after the shooting. One of the perpetrators ran ahead of the other and did not appear to be carrying anything. The other slower perpetrator was seen limping and left a trail of blood, later analyzed as having a high probability of being defendant's blood. As the bleeding perpetrator fled, bystanders who followed him saw him raise his revolver at them and told them to "get back." When officers contacted defendant at a hospital after the shooting, defendant lied and said he was shot at a park in Los Angeles. Ray, however, told a former roommate defendant was shot when attempting to rob a medical marijuana dispensary outside Los Angeles.
This evidence, as a whole, not only constitutes strong evidence that defendant was one of the robbery perpetrators, but also that defendant was the shooter. Therefore, we conclude defendant has not established prejudice sufficient to support his IAC claim. It is not reasonably probable defendant would have obtained a more favorable outcome had his attorney objected to the prosecutor's brief reasonable doubt remark made at the end of rebuttal. (People v. Castillo (2008) 168 Cal.App.4th 364, 386.)
VI
SENTENCING ON COUNT 2
Defendant argues this court should remand this case with directions to the trial court to (1) clarify its sentence imposed on count 2 (attempted robbery), (2) correct the order imposing a $140 court security fee, and (3) correct the abstract of judgment.
A. Count 2 Sentence
At sentencing on April 11, 2016, the trial court stated: "I'm imposing the midterm of three years, that is stayed pursuant to [section] 654 . . . . So in Count 2, the total commitment is three plus 25 years to life, that is stayed pursuant to Penal Code section 654."
The April 11, 2016, minute order, however, states: "As to Count 2; the Court imposes the Upper term of 3 Years [¶] 3 Years stayed Pursuant to PC654 Concurrent with Count one."
The abstract of judgment states that, as to count 2, the court imposed a concurrent upper term of three years.
When there is a discrepancy between the oral pronouncement of a sentence and the written minute order or the abstract of judgment, the court's oral pronouncement normally controls, because the written minute order and the abstract of judgment are ministerial. (People v. Freitas (2009) 179 Cal.App.4th 747, 750, fn. 2.)
The middle term for an attempted robbery conviction (§§ 664, 211; count 2) is two years. The upper term is three years. (§§ 664, 213; People v. Moody (2002) 96 Cal.App.4th 987, 990.) It is therefore unclear from the trial court's oral statement of the count 2 sentence as to whether the court intended to impose the middle term of two years or upper term of three years. The probation report recommended the court impose the upper three-year term. Also, the minute order and the abstract of judgment must be corrected, as they state the court imposed the sentence concurrently, rather than stayed, as stated orally during the sentencing hearing.
Because of the ambiguity in defendant's sentence on count 2, the matter must be remanded to the trial court with directions to impose a proper sentence consistent with the statutory sentencing scheme provided in sections 213 and 664. After the sentence is corrected, the abstract of judgment and the minutes of the sentencing hearing are to be amended to reflect the corrected sentence.
B. Court Security Fee
Defendant maintains that the trial court erred in imposing a court security fee of $70 per conviction. The court security fee is $40 per conviction under Penal code section 1465.8. The probation report recommended the court also order a $30 court facilities assessment for each conviction under Government Code section 70373. Defendant suggests the trial court incorrectly combined the $40 fee and $30 assessment, and designated it the court security fee.
Because the trial court's oral order misstates the amount of the court security fee as $70 per conviction and does not mention the court facilities assessment fee, the fee is ordered modified as follows: (1) defendant is ordered to pay $80, consisting of a $40 court security fee for each of defendant's two convictions; and (2) defendant is ordered to pay $60, consisting of a $30 court facilities assessment for each of defendant's two convictions. The abstract of judgment is to be corrected accordingly.
VII
CUSTODY CREDITS
Defendant objects to the trial court incorrectly awarding him 354 days of presentence custody credits, instead of 356 days. At sentencing, the court credited defendant with 354 days of actual presentence custody. This amount of credits was based on an erroneous determination that defendant was arrested on April 24, 2015. The record on appeal shows defendant was arrested on April 22, 2015, and remained in custody continuously thereafter until sentencing on April 11, 2016, for a total of 356 days in custody. Defendant's presentence custody credits are therefore ordered increased from 354 days to 356 days. (§ 1237.2; People v. Taylor (2004) 119 Cal.App.4th 628, 647 ["A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered."].)
VIII
DISPOSITION
The judgment of conviction is affirmed but, because of the ambiguity in the trial court's pronouncement of defendant's sentence on count 2, defendant's sentence on count 2 is reversed. The matter is remanded with directions that the trial court resentence defendant on count 2, consistent with the statutory sentencing scheme provided in sections 213 and 664.
Defendant's sentence is further ordered modified as follows: (1) The $70 per conviction security fee, orally ordered by the trial court, is ordered vacated and replaced with imposition of a court security fee of $40 per conviction (totaling $80 for two convictions) and imposition of a court facilities assessment of $30 per conviction (totaling $60 for two convictions); and (2) defendant's presentence custody credits award is ordered increased to 356 days from 354 days. The judgment is affirmed in all other regards.
The sentencing minutes and the abstract of judgment shall be amended to reflect the above modifications and new sentence on count 2 (after remand), and forwarded to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. FIELDS
J.