Filed 6/17/14 P. v. Herrera CA2/5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B250703

         Plaintiff and Respondent,                                   (Los Angeles County Super. Ct.
                                                                      No. LA065186)
         v.

GERSON HERRERA,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles, Michael K.
Kellogg, Judge. Affirmed in part, reversed in part, and remanded with directions.
         Law Offices of Edward J. Haggerty and Edward J. Haggerty, under appointment
by the Court of Appeal, for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, and Peggy Z. Huang, Deputy Attorney General,
for Plaintiff and Respondent.
                                    ______________________________
       The jury convicted defendant and appellant Gerson Herrera1 of first degree
murder. (Pen. Code, § 187, subd. (a).)2 The jury found true the allegations that
defendant personally and intentionally discharged a firearm (§ 12022.53, subds. (b)-(d)),
and that a principal was armed with a firearm (§ 12022, subds. (a)(1)). Defendant waived
his right to a jury on the prior conviction allegations and the trial court found true the
allegations that defendant suffered a prior strike within the meaning of the three strikes
law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), suffered a prior serious felony
conviction (§ 667, subd. (a)(1)), and had served a prior prison term (§667.5, subd. (b)).
       The trial court sentenced defendant to 75 years-to-life in state prison, consisting of
a term of 25 years-to-life for first degree murder, which it doubled to 50 years-to-life
pursuant to the three strikes law, plus 25 years-to-life for the personal firearm
enhancement. The court imposed and stayed the sentence for the prior serious felony
conviction under section 667, subdivision (a).
       Defendant contends that the trial court improperly instructed the jury on the
consideration of accomplice testimony. He further contends that the prosecutor
committed misconduct during closing argument by misstating the law defining first
degree murder, and defense counsel rendered ineffective assistance of counsel by failing
to object to the argument. Lastly, he asserts that the prosecutor also committed
misconduct by improperly vouching for the credibility of witnesses during rebuttal
argument.
       We hold that the trial court erred by staying the five-year enhancement under
section 667, subdivision (a)(1), because imposition of the enhancement is mandatory.

       1 Defendant and codefendants Ian Hamilton, Gary Mikaelian, and Joaquin Ramos
were jointly charged with murder. (Pen. Code, § 187, subd. (a).) Hamilton was tried
separately. A jury found Hamilton guilty of first degree murder and found true the
special allegation that a principle was armed with a firearm. He was sentenced to 26
years-to-life in state prison. Mikaelian pled guilty to attempted murder and
manslaughter. Mikaelian was sentenced to eight years and four months in state prison.
Ramos also reached a disposition on his case.

       2   All further statutory references are to the Penal Code unless otherwise specified.

                                               2
We remand the cause to the trial court with directions to impose the enhancement, and in
all other respects, we affirm.


                                            FACTS3


Planning of the Murder and Prior Attempts


       Ian Hamilton had a child with Anel Juarez. They were engaged in an ongoing
custody battle over the child, which angered Hamilton.
       Angelo Nieto4 knew both defendant and Joaquin Ramos from school and from
living in the same neighborhood. Nieto and Hamilton worked together as mall security
guards before Nieto left to work at another mall. Hamilton was Nieto’s supervisor.
Hamilton and Mikaelian were also coworkers; Mikaelian was Hamilton’s supervisor.
       Hamilton told Nieto and Mikaelian about the problems he was having with Juarez
regarding their child. Hamilton initially offered Nieto $300 to “fuck [Juarez] up.” Nieto
refused, but said he knew someone who would do it and discussed it with his friends
Efren and Fabian. In exchange, Nieto would pay Efren with marijuana and forgive the
debt that Fabian owed. Hamilton paid Nieto $300 and instructed Nieto, Efren, and
Fabian to go to a laundromat near Hamilton’s house to hurt Juarez. There were too many
people at the laundromat, so the plan was called off.
       There was a second attempt to hurt Juarez at her sister’s house. Under that plan,
Efren’s friend would beat Juarez and they would take her money. Nieto, Efren, and
Efren’s friend went to the sister’s house and waited for Juarez, but no one showed up.
Later, defendant, Nieto, and Fabian returned to the sister’s house in another unsuccessful
attempt to beat Juarez.


       3   Defendant did not testify and called no witnesses at trial.

       4Nieto pled guilty to manslaughter and attempted murder. He was sentenced to
13 years and 4 months in state prison in exchange for his testimony.

                                                3
       After the failed attempts, Hamilton decided that he wanted Juarez killed.
Hamilton and Nieto had discussions about killing her, but there was no established date
or time. However, Nieto knew that it was time to execute the plan when Hamilton called
him one day. Nieto then asked defendant to kill Juarez. Since Hamilton and defendant
did not know each other, Nieto introduced them. Defendant asked how many shots he
should fire at Juarez because he might “get trigger-happy.” Hamilton said that he did not
care and “just to empty the whole [magazine].”
       During this time, Nieto was having some problems with a neighbor so Hamilton
lent him a .45-caliber gun. Nieto showed the handgun to defendant and Ramos. When
Nieto returned the gun to Hamilton, Nieto told him that defendant liked the gun.
Hamilton stated defendant could have the gun. Nieto then told defendant he could keep
the gun, and Nieto would give him crystal methamphetamine on the condition that
defendant would kill Juarez. Defendant agreed to the deal.
       Nieto and defendant made their first attempt to kill Juarez after she moved to a
different apartment. Nieto called Hamilton, who told him that Mikaelian would be
meeting them at the gas station. This was the first time Nieto knew of Mikaelian’s
involvement. When Mikaelian showed up, Nieto followed Mikaelian by car to Juarez’s
apartment where defendant and Nieto waited for Hamilton. Eventually Hamilton came
out of the apartment building. Nieto saw defendant holding a gun. The plan was that
defendant would shoot Juarez when she came out of the building. However, Juarez never
came out so Nieto and defendant left.
       Hamilton would call Nieto several times later and direct him to execute the plan to
kill Juarez, however, each attempt was shortly abandoned.
       Later, Hamilton called and sent text messages to Nieto asking that defendant
return the gun to him because Hamilton needed it, but defendant refused. Nieto told
defendant to return the gun and that he could have it back later. Near the time of the
murder, Hamilton gave Nieto a Beretta handgun. Nieto asked Ramos to hold the gun for
him.



                                             4
           On April 12, 2010, one day before Juarez was murdered, Hamilton met Nieto and
defendant at Whitsett Park. They decided to bring Juarez to a location across from the
park where there would not be a lot of people. Hamilton planned to lure Juarez to the
park under the pretense that he had a job for her as a stripper.


The Murder


           On April 13, 2010, between 7:00-7:30 p.m., Hamilton called Mikaelian and asked
him to come to work at the mall because he needed money to buy gas for the truck.
When he arrived at work, Mikaelian gave Hamilton some money. Although Hamilton
was supposed to work, Mikaelian drove Hamilton to Nieto’s apartment. Nieto was not
home, so Hamilton and Mikaelian left to Juarez’s apartment.
           Nieto was at work at around 8:30 p.m., when he received a phone call from
Hamilton who ordered Nieto to “[g]o look for your homie,” a reference to defendant.
Nieto knew it was time to try again to kill Juarez and called defendant, but he did not
answer the phone. Nieto returned home to change his clothes and went to defendant’s
house.
           When Nieto arrived at defendant’s house, defendant told him that Hamilton had
just left that location. Defendant showed Nieto a box of bullets and a gun given to him
by Hamilton. Nieto recognized the .45-caliber gun because Hamilton had allowed him to
fire it.
           Nieto had planned to drive defendant in his car to the park, but he changed his
mind so he asked defendant to find another driver. Nieto offered his car to defendant and
left his house. Nieto knew that the murder of Juarez would happen after he left. Since
defendant did not find another driver, Hamilton called Nieto and told him to return to
defendant’s house. Ramos was at the house when Nieto returned. Ramos told Nieto that
he had to be the driver because he had recruited defendant to commit the murder. Ramos
said he left his van’s window open so that defendant could leave the gun inside the van
after the murder.


                                                5
      Around 8:40 or 9:00 p.m., Hamilton and Mikaelian arrived at Juarez’s apartment.
Hamilton told Mikaelian to drive to Rhodes Avenue near the park and wait for him.
Mikaelian followed Hamilton’s direction.
      Saida Navarrete lived in an apartment on the first floor of the apartment building
where Juarez resided on April 13, 2010. At around 9:00 p.m., Navarrete and her husband
were walking out of the apartment complex when she saw Juarez walking down the stairs
from her apartment with Hamilton. Hamilton was wearing tennis shoes, blue jeans, and a
gray sweatshirt with a hood. Navarrete had seen Hamilton come to the apartment
complex on two occasions. Juarez appeared to be intoxicated or under the influence of
drugs. Hamilton was holding Juarez as she was swaying from side to side as she walked.
At the bottom of the stairs, Juarez said, “Hello, ma’am. How are you?” Navarrete
responded, “Fine. Thank you.” Hamilton was silent and did not make eye contact. His
demeanor was “strange” and he held Juarez in a manner “as if not to talk to anybody.”
After Juarez and Navarrete greeted each other, Hamilton made an abrupt turn and took
Juarez away so that she could not continue to speak to Navarrete.
      Hamilton called Nieto and told him that he and Juarez were on their way. Nieto
drove defendant to the park. Defendant had a .45-caliber handgun with him. He was
wearing a sweater with checkered shorts that fell below the knee. Hamilton drove
Juarez’s car past Mikaelian and parked next to the park. Juarez was in the passenger seat.
Nieto saw Hamilton arrive and asked defendant if he would kill Juarez. Defendant said
that he did not want to because he did not want to get caught. Hamilton and Juarez were
in the car for five minutes before Hamilton exited the car. Hamilton walked over to
Mikaelian in his car and said, “Let’s go.” Mikaelian asked where they were going and
Hamilton said to go back to work. They left Juarez on Rhodes Avenue. Defendant
chambered a round into the gun, exited Nieto’s car, and walked toward Juarez’s car. A
couple of minutes later, defendant returned. Nieto asked defendant what had happened
and defendant said that there were a lot of people watching him.
      While Mikaelian and Hamilton were driving away from Rhodes Avenue, Nieto
relayed what happened to Hamilton. Hamilton responded that the killing had to happen


                                            6
that day. After Hamilton hung up the phone, he asked Mikaelian to return to Rhodes
Avenue where they had left Juarez. Mikaelian returned to the same spot where he had
parked earlier. Hamilton exited the car and walked over to Juarez. A minute later,
Hamilton returned to Mikaelian’ s car and told him to follow Juarez’s car. Hamilton
walked back to Juarez’s car and got in.
       Nieto’s car drove past Mikaelian with defendant in the passenger seat, followed by
Juarez’s car. Juarez was driving this time and Hamilton was in the passenger seat. Nieto
stopped the car in the middle of Archwood Street. Defendant exited the car and walked
toward Juarez’s car, but returned because there were too many people. Nieto called
Hamilton again and told him that there were too many people around. Hamilton said that
he was returning to the park area and that the murder had to be done that day. He also
said to block Juarez if she tried to leave.
       Nieto drove back to Rhodes Avenue, where he and defendant waited in the car.
Nieto saw Juarez’s car make a U-turn. Hamilton called Nieto and told Nieto that he
would follow him to another place. As Nieto drove down Rhodes Avenue, he saw
Mikaelian’s car, which then followed Nieto’s car. Nieto drove to a nearby location on
Gault Street, which was a dead end street. Nieto made a U-turn and parked on St. Clare
Street. Juarez’s car also drove down Gault Street and parked. Hamilton stuck his arm
out of Juarez’s car window and pointed to Mikaelian to park on the corner of Gault and
St. Clare Street. Hamilton called Nieto and asked, “Where is your homie at?” Nieto
responded, “Right here.” Hamilton told Nieto to tell defendant to “go over there.”
Hamilton was standing outside of Juarez’s car when defendant exited Nieto’s car with the
gun in hand. Hamilton walked to the corner of Gault and St. Clare Street as defendant
walked past him. Both Nieto and Mikaelian heard rapidly fired gunshots. Hamilton ran
to Mikaelian’s car and defendant ran to Nieto’s car. Both cars drove away.
       Aleen Haroian, who lived on Gault Street, was at home on April 13, 2010, at
10:00 p.m. when she heard her dog barking aggressively and continuously along the side
of her house. The dog’s behavior caused Haroian to believe that there was something
unusual happening outside. She went outside and saw a man she had never seen before


                                              7
pacing back and forth on the sidewalk in front of her home. The man was wearing baggie
shorts with stripes below his knees and a dark hoodie, but she was unable to see the
man’s face. A car that Haroian did not recognize was parked across the street from the
house. The man placed his hand on his right pocket. Haroian returned to her house. She
heard two gunshots that sounded as if they came from the front of the house. Haroian
called 9-1-1.
       When Hamilton returned to the car, Mikaelian asked what had happened, but
Hamilton said, “Nothing,” and that they would discuss it later. As Mikaelian started to
leave the area, Nieto’s car drove by. While Mikaelian was driving, Hamilton received
phone calls. Mikaelian dropped Hamilton off at the mall around 10:30 p.m.
       Nieto slowly drove away so that no one would see a car leaving. When defendant
entered Nieto’s car, he had a “burnt” smell similar to what Nieto recalled after he had
fired the same .45-caliber handgun. Nieto drove to Ramos’s apartment where Ramos had
parked the van. Defendant exited the car and dropped the gun through the van’s window.
He returned to the car and Nieto drove away. Nieto and defendant did not talk to each
other in the car. He dropped defendant off at his house and Nieto went home. Juarez
died as a result of multiple gunshot wounds.
       The morning after the shooting, Nieto went to defendant’s house, where Ramos
was present. Defendant was cleaning the .45-caliber handgun used in the shooting.
Ramos told Nieto not to talk about the murder. After Ramos left, defendant told Nieto
what had happened the night before. Defendant stated that he walked up to Juarez’s car
and Juarez asked him if he was Hamilton’s “homie.” Defendant shook his head to
indicate “no,” and then he shot Juarez. Juarez had a surprised look and let out a gasp
when defendant displayed the gun.


Additional Evidence


       Three .45-caliber casings were found at the scene of the shooting of Juarez. While
in custody after his arrest, defendant told Mikaelian that he had walked up to Juarez and


                                               8
fired the gun three times. A restraining order against Hamilton was found inside Juarez’s
car, along with information on multiple phone numbers. Investigation of those numbers
showed contacts between defendant, Hamilton, Ramos, Mikaelian, and Nieto in the time
period leading up to the murder. Defendant admitted to police that he was nearby when
Juarez was shot, but said Hamilton was the shooter.


                                       DISCUSSION


Jury Instructions


       Defendant contends the trial court erred by giving inconsistent and confusing
instructions when it provided the jury with CALJIC No. 3.16 (“Witness Accomplice as a
Matter of Law”) in conjunction with CALJIC No. 3.19 (“Burden to Prove Corroborating
Witness Is an Accomplice”). These instructions, according to defendant, inconsistently
told the jurors that (1) Nieto and Mikaelian were accomplices as a matter of law and (2)
defendant had the burden of proving these witnesses were accomplices. Defendant
further contends that the trial court failed to sua sponte instruct the jury with CALJIC No.
3.18 (“Testimony of Accomplice or Codefendant to be Viewed With Care and Caution”).


       Standard of Review


       We review a claim of instructional error de novo. (People v. Cole (2004) 33
Cal.4th 1158, 1210.) “‘“In determining whether error has been committed in giving or
not giving jury instructions, we must consider the instructions as a whole . . . [and]
assume that the jurors are intelligent persons and capable of understanding and
correlating all jury instructions which are given. [Citation.]”’ [Citation.] ‘Instructions
should be interpreted, if possible, so as to support the judgment rather than defeat it if
they are reasonably susceptible to such interpretation.’ [Citation.]” (People v. Martin
(2000) 78 Cal.App.4th 1107, 1111-1112.)


                                              9
       “Error in failing to instruct the jury on consideration of accomplice testimony at
the guilt phase of a trial constitutes state-law error, and a reviewing court must evaluate
whether it is reasonably probable that such error affected the verdict. (People v.
Whisenhunt (2008) 44 Cal.4th 174, 214.)” (People v. Williams (2010) 49 Cal.4th 405,
456.) “Any error in failing to instruct the jury that it could not convict defendant on the
testimony of an accomplice alone is harmless if there is evidence corroborating the
accomplice’s testimony.” (Ibid.)


       Forfeiture


       Preliminarily, we reject the Attorney General’s contention that defendant forfeited
his claim by failing to object to the jury instructions, to the extent defendant contends the
instruction error implicated his substantial rights. (§ 1259; People v. Franco (2009) 180
Cal.App.4th 713, 719 [failure to object to an instruction in the trial court waives any
claim of error unless “the instruction was an incorrect statement of the law [citation], or
. . . the instructional error affected the defendant’s substantial rights”].) Although we
decline to resolve the issue on the ground of forfeiture, we nonetheless hold defendant
fails to establish prejudicial error.


       CALJIC Nos. 3.16 and 3.19


       During the discussion of jury instructions, the prosecutor informed the trial court
that CALJIC No. 3.16 was not included in the instructions. Defense counsel agreed that
CALJIC No. 3.16 should be given. The court agreed and included it as modified. At the
conclusion of the discussion, the court asked both counsel if there was anything further to
discuss and defense counsel responded, “No. That’s it, your honor.”
       The jury was instructed with a modified version of CALJIC No. 3.16 as follows:
“If the crime of Murder was committed by anyone, witnesses Angel Nieto, and Gary
Mikaelian, were accomplices as a matter of law and their testimony is subject to the rule


                                             10
requiring corroboration.” Then the jury was instructed with a modified version of
CALJIC No. 3.19 as follows: “You must determine whether the witnesses Angel Nieto,
and Gary Mikaelian was an accomplice [sic] as I have defined that term. [¶] The
defendant has the burden of proving by a preponderance of the evidence that Angel Nieto
and Gary Mikaelian were accomplices in the crimes charged against the defendant.”
       We agree with defendant that the trial court should not have given CALJIC No.
3.19, but the error could not have been prejudicial in this case. The parties agreed at trial,
and again agree on appeal, that Nieto and Mikaelian were accomplices. The jury was
instructed that an accomplice is a person subject to prosecution for the identical offense
charged in the case pursuant to CALJIC No. 3.10, the jurors knew that both Nieto and
Mikaelian had pled guilty in connection with this case, and the prosecutor conceded in
closing arguments that Nieto and Mikaelian were accomplices. CALJIC No. 3.19 was
mere surplusage that had no application to the facts. (See CALJIC No. 17.31 [jury
should disregard instructions that do not apply to the facts].)
       Moreover, the requirement that the testimony of an accomplice be corroborated
was thoroughly explained to the jury in CALJIC No. 3.11 (“Testimony of Accomplice or
Codefendant Must Be Corroborated”), CALJIC No. 3.12 (“Sufficiency of Evidence to
Corroborate an Accomplice”), and CALJIC No. 3.13 (“One Accomplice May Not
Corroborate Another”). The record on appeal contains abundant corroboration of the
accomplices’ testimony. Hamilton had a strong motive to kill Juarez, with whom he had
an ongoing dispute over custody of their son. The manner in which the killing took place
was consistent with a planned execution, as described in the accomplices’ testimony.
Cell phone records corroborated defendant’s connection to Hamilton and placed them in
the vicinity of the shooting. The clothing worn by defendant at the time of the shooting
was described by both Haroian and Nieto. The number of casings found at the scene of
the murder was consistent with the number of shots defendant told Mikaelian he had fired
at Juarez. Given these facts, and other sources of corroboration, defendant has fallen far
short of demonstrating reversible error.



                                             11
       CALJIC No. 3.18


       Defendant further contends that the trial court had a sua sponte duty to instruct the
jury with CALJIC No. 3.18. (People v. Guiuan (1998) 18 Cal.4th 558, 569 (Guiuan).)
CALJIC No. 3.18 provides as follows: “To the extent that [an accomplice] [or] [a
codefendant] gives testimony that tends to incriminate [the] . . . defendant, it should be
viewed with caution. This does not mean, however, that you may arbitrarily disregard
that testimony. You should give that testimony the weight you think it deserves after
examining it with care and caution and in the light of all the evidence in this case.”
       The failure to sua sponte instruct the jury with CALJIC No 3.18 was clearly
harmless in this case. The jury was thoroughly instructed on the requirement of
corroboration for accomplice testimony. (See CALJIC Nos. 3.11, 3.12, 3.13.) “‘At
common law the fact that a witness was an accomplice resulted only in an instruction that
his testimony was to be viewed with care, caution, and suspicion unless corroborated in
any material matter by independent evidence. [Citations.] The limitation based on the
common law distrust of accomplices as now embodied in [Penal Code] section 1111
[barring convictions based on uncorroborated accomplice testimony] is much harsher
than the common law limitation. Juries are now compelled rather than cautioned to view
an accomplice’s testimony with distrust, for while his testimony is always admissible and
in some respects competent to establish certain facts (see People v. McRae [(1947)] 31
Cal.2d 184, 187 [probable cause to hold defendant to answer at preliminary hearing]),
such testimony has been legislatively determined never to be sufficiently trustworthy to
establish guilt beyond a reasonable doubt unless corroborated.’ [Citation.]” (Guiuan,
supra, 18 Cal.4th at pp. 573-574.) Here, the corroboration instructions effectively
subjected Nieto’s and Mikaelian’s testimony to a harsher standard than an instruction to
view their testimony “with caution,” as it required the jury to examine whether their
testimony was at least partly confirmed by independent evidence.
       In addition to the corroboration instructions, the jury was instructed pursuant to
CALJIC No. 2.20 on witness credibility to consider, among other things, the existence of


                                             12
“bias, interest, or other motive” in weighing the credibility of a witness (see Evid. Code,
§ 780), and with CALJIC No. 2.21.2 that “A witness who is willfully false in one
material part of his or her testimony, is to be distrusted in others.” “To the extent
defendant argues the jury should have been instructed to view Pridgon’s testimony with
distrust (CALJIC No. 3.18), we find the other instructions given — including ‘[a]
witness, who is willfully false in one material part of his or her testimony, is to be
distrusted in others’ (CALJIC No. 2.21.2), along with instructions on a witness’s
credibility (CALJIC No. 2.20) and the character of a witness for honesty or truthfulness
or their opposites (CALJIC No. 2.24) — were sufficient to inform the jury to view
Pridgon’s testimony with care and caution, in line with CALJIC No. 3.18.” (People v.
Lewis (2001) 26 Cal.4th 334, 371.) “[W]e have no doubt that the
jurors viewed [the] testimony [of Nieto and Mikaelian] with extreme caution.” (People v.
Jones (2003) 30 Cal.4th 1084, 1113.)


Prosecutorial Misconduct


       Defendant contends the prosecutor committed misconduct by understating the
legal requirements of premeditation and deliberation during closing argument. He also
argues misconduct was committed when the prosecutor vouched for the credibility of
witnesses during rebuttal argument.


       Misstating the Law


       During closing arguments, the prosecutor stated: “Deliberation, premeditation is
something we do anywhere from waking up in the morning to deciding which shoes to
wear or if the light turns to yellow, do I keep driving or not? You’re deciding. [¶] Is this
something I am going to choose to do it after you think it through? No amount of time is
necessary. Could be a split-second decision or something such as in this case, planned
out long before.” Defendant contends it was misconduct to analogize premeditation and


                                              13
deliberation to selecting a pair of shoes or a driver’s decision to enter an intersection after
the traffic light turned yellow. Defendant maintains entering an intersection or selecting
a pair of shoes is an inconsequential decision made hastily or impulsively rather than
after true deliberation or planning activity.
       Defendant failed to object on the ground of prosecutorial misconduct and failed to
request a jury admonition with respect to the prosecutor’s comments. Defendant
therefore forfeited the prosecutorial misconduct issue. (People v. Fuiava (2012) 53
Cal.4th 622, 679-680; People v. Riggs (2008) 44 Cal.4th 248, 298.)
       Defendant’s alternative argument that the issue is cognizable on appeal because
trial counsel rendered ineffective assistance by failing to object below is without merit.
“Failure to object rarely constitutes constitutionally ineffective legal representation.”
(People v. Boyette [(2002)] 29 Cal.4th [381,] 424.)” (People v. Gray (2005) 37 Cal.4th
168, 207.) In addition, the record on appeal does not contain a reason for counsel’s
failure to object, so the issue is not properly presented on direct appeal. (Ibid.) Finally,
because we conclude below that there was no prosecutorial misconduct, counsel’s failure
to object therefore could not constitute ineffective assistance of trial counsel. (See
Strickland v. Washington (1984) 466 U.S. 668, 687.)
        The contention also fails on the merits. We resolve this issue based on familiar
principles. “‘“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.]” [Citation.]”
(People v. Hill (1998) 17 Cal.4th 800, 819.) “‘“‘A prosecutor is given wide latitude
during argument. The argument may be vigorous as long as it amounts to fair comment
on the evidence, which can include reasonable inferences, or deductions to be drawn
therefrom.’”’” (Ibid.) To prevail on a claim of prosecutorial misconduct based on
comments to a jury, the defendant must show a reasonable likelihood the jury understood


                                                14
or applied the challenged comments in an improper or erroneous manner. (People v.
Frye (1998) 18 Cal.4th 894, 970; People v. Samayoa (1997) 15 Cal.4th 795, 841.)
       Viewing the challenged comments in context, the jury would have reasonably
understood the point made by the prosecutor is that premeditation and deliberation can
occur quickly. The prosecutor’s statement was consistent with CALJIC No. 8.20 which
states that the test for premeditation and deliberation is not the duration of time, but rather
the extent of the reflection. (People v. Bolin (1998) 18 Cal.4th 297, 332.)5 “The
prosecutor did not misstate the law of premeditation and deliberation.” (People v.
Osband (1996) 13 Cal.4th 622, 697 [rejecting claim of prosecutorial misconduct based on
arguments that premeditation means “considered beforehand” and restating the law that
premeditation and deliberation can occur in a brief interval].)
       Finally, the prosecutor’s statement could not have been prejudicial. The jury was
properly instructed on the definition of premeditation and deliberation, and that the jury
must follow the court’s instructions if they conflict with anything said by the attorneys
during argument. (CALJIC No. 1.00.) In the context of a murder for hire, which
included several aborted attacks on the victim, there is no likelihood that the prosecutor’s
brief argument on this point swayed the jury to find that the murder was committed with
premeditation and deliberation.


       Vouching for Witnesses


       Defendant contends the prosecutor improperly vouched for the credibility of his
witnesses during rebuttal argument by invoking the integrity of the district attorney’s
office and implying that their testimony had been vetted by multiple layers of the
prosecutorial bureaucracy.


       5People v. Johnson (2004) 119 Cal.App.4th 976 and People v. Nguyen (1995) 40
Cal.App.4th 28, cited by defendant, do not compel a contrary conclusion, since both
cases dealt with the reasonable doubt standard rather than the element of premeditation
and deliberation.

                                              15
       A prosecutor is prohibited from vouching for the credibility of witnesses or
otherwise bolstering the veracity of their testimony by referring to evidence outside the
record. (People v. Sully (1991) 53 Cal.3d 1195, 1235; People v. Anderson (1990) 52
Cal.3d 453, 479.) “Nor is a prosecutor permitted to place the prestige of her office
behind a witness by offering the impression that she has taken steps to assure a witness’s
truthfulness at trial.” (People v. Frye, supra, 18 Cal.4th at p. 971, citing United States v.
Roberts (9th Cir. 1980) 618 F.2d 530, 536–537.) However, so long as a prosecutor’s
assurances regarding the apparent honesty or reliability of prosecution witnesses are
based on the “facts of [the] record and the inferences reasonably drawn therefrom, rather
than any purported personal knowledge or belief,” his comments cannot be characterized
as improper vouching. (People v. Medina (1995) 11 Cal.4th 694, 757; see also People v.
Williams (1997) 16 Cal.4th 153, 256.)
       In his argument to the jury, defense counsel stated, “[The prosecutors] end up
giving [Nieto] all of his statements. They give him all of his police reports. The guy is
as versed on this case as anybody. And finally he does get that deal after volumes and
volumes of transcripts.” Counsel further argued that “[the prosecution] threw a Hail
Mary pass on the day before the trial, started back in 2010. They threw a Hail Mary pass
the day before trial. When they gave those deals, Hail Marys.” Counsel continued by
stating, “[j]ustice shouldn’t be for sale. And in this case justice was for sale, and people
took advantage of it.” He argued that “[t]hey sold the district attorney a bill of goods.
The district attorney bought it, because they want to get [defendant]. Counsel told the
jury, “the other guys changed their stories because they got paid for it. They got
something for it. [Defendant] didn’t.” Counsel also argued, “And finally, justice was
sold. You can’t convict him on that.”
       In his rebuttal argument, the prosecutor stated: “So what we hear yesterday was
the defense of deception. ‘Justice was brought’ was the phrase used several times. Were
they paid anything? Of course not. But what did they do? They were given an
opportunity to talk with us and tell us the truth in exchange for truthful testimony. [¶]
Now the way it was presented is that somehow the prosecutor is involved, and there were


                                             16
multiple prosecutors. You heard some other names. The prosecutors involved somehow
created some sort of manipulation to get these people to come and lie, that we were part
of some sort of conspiracy, if you will — we have been talking a lot about those — to get
people to come and lie on our behalf because for some reason, we really want these other
guys. [¶] Now on behalf of Jackie Lacey, about a thousand prosecutors in the county of
Los Angeles, the largest district attorney’s in the country, I was offended. Offended. [¶]
Where has there been any evidence presented that anything improper was done by my
office? [¶] Now it would be unethical for me to do certain things, such as describe to you
how our office works or try to persuade you because this is how our office works. [¶] To
call one of the top 15 people in our office to take the stand during the trial to explain to
you how we have a large bureaucracy and they are involved in a case of this nature and
that things happen at certain times because there’s about a thousand attorneys working
and has to filter up to about the top of that pyramid, and they’re involved in making
decisions. Does that mean somehow Miss Tanner, myself, or any of our other colleagues
did something?”
       We conclude that the “prosecutor’s comments were fair rebuttal to defense
counsel’s characterization of the prosecution evidence . . . .” (People v. Edwards (2013)
57 Cal.4th 658, 740.) “[E]ven otherwise prejudicial prosecutorial argument[s], when
made within proper limits in rebuttal to arguments of defense counsel, do not constitute
misconduct.” (People v. McDaniel (1976) 16 Cal.3d 156, 177.) Throughout his closing
argument, defense counsel asserts improprieties by the district attorney’s office and that
justice was sold in this case. The rebuttal argument was an appropriate response to
defense counsel’s argument which impugned the integrity of the prosecution.
       We further conclude defendant cannot establish prejudice from the prosecutor’s
argument. The subject comments were brief and relatively isolated, particularly as
compared to defense counsel’s comments maligning the prosecution. Additionally, the
prosecutor finished discussing the topic by directing the jury to decide the case on the
evidence presented, stating, “[Y]ou had no idea what it took to get those witnesses on the
stand, you don’t. They got there and they testified. Evaluate them for what they said.


                                              17
The credibility of your analysis is not based upon what happened out of court with our
offices. [¶] Your credibility of your analysis should be what you saw from the stand and
based on the things you heard as far as evidence, not what my office did.”
         The prosecutor’s request that the jury focus on the facts of the case in its
evaluation of the witnesses’ credibility, in combination with the court’s instructions that
jurors must determine the facts solely from the evidence received at trial and that
statements made by the attorneys during trial are not evidence, sufficiently dissipated any
potential harm the remark might otherwise have caused. As a result, there is no
“reasonable likelihood that the jury construed or applied . . . the complained-of remarks
in an objectionable fashion. [Citation.]” (People v. Berryman (1993) 6 Cal.4th 1048,
1072, 1076 overruled on another point in People v. Hill, supra, 17 Cal.4th at p. 823, fn.
1.)
         Under the circumstances, we conclude that prosecutor’s statements during rebuttal
“did not render the trial fundamentally unfair. Nor did it amount to a deceptive or
reprehensible method of persuasion. Accordingly, it did not constitute misconduct under
federal or state standards. [Citations.]” (People v. Gionis (1995) 9 Cal.4th 1196, 1218-
1219.)


Prior Conviction under Section 667, Subdivision (a)


         The trial court stayed imposition of the section 667, subdivision (a) enhancement
of five years. The Attorney General contends the court lacked the power to stay the
enhancement, and the cause must be remanded to the trial court to either stay or impose
the additional five-year term. The Attorney General is correct that the enhancement
cannot be stayed, but errs in stating it can be stricken, as such action is expressly
forbidden by statute. (§ § 667, subd. (a) [“In compliance with subdivision (b) of section
1385, any person convicted of a serious felony who previously has been convicted of a
serious felony . . . shall receive . . . a five-year enhancement . . . [and the] terms of the
present offense and each enhancement shall run consecutively”]; 1385, subd. (b) [“This


                                               18
section does not authorize a judge to strike any prior conviction of a serious felony for
purposes of sentence under section 667”].) Upon remand, the trial court shall impose the
mandatory five-year enhancement under section 667, subdivision (a).


                                     DISPOSITION


       The cause is remanded to the trial court with directions to impose the five-year
enhancement under Penal Code section 667, subdivision (a)(1). The trial court shall
forward a certified copy of the amended abstract of judgment to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed.




              KRIEGLER, J.


We concur:




              MOSK, Acting P. J.




              MINK. J. *




       * Retired judge of the Los Angeles County Superior Court assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

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