Filed 1/8/14 P. v. Lopez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064487
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. CRM009613)
                   v.

PAUL RAMON LOPEZ,                                                                        OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Merced County. John D.
Kirihara, Judge.
         Thomas Owen, under appointment by the Court of Appeal, for Defendant and
Appellant.


*        Before Cornell, Acting P.J., Gomes, J. and Hoff, J.†
†     Judge of the Superior Court of Fresno County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
       Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Rebecca
Whitfield, Deputy Attorneys General, for Plaintiff and Respondent.
                                          -ooOoo-
                                    INTRODUCTION
       A jury convicted appellant Raul Ramon Lopez of felony vandalism and
misdemeanor vandalism. Lopez contends his convictions should be reversed because
(1) the trial court abused its discretion when it denied his motion for a new trial based on
newly discovered evidence, and (2) defense counsel rendered ineffective assistance when
she failed to object to remarks made by the prosecutor in closing argument. We disagree
and will affirm the judgment.
                    FACTUAL AND PROCEDURAL SUMMARY
       In 2006, Lopez was caught near a graffiti-ridden fence with a backpack full of
spray paint cans; his clothes were covered in wet, sticky spray paint. The fence had been
spray painted with blue, triangle-shaped faces. Lopez admitted to vandalizing the fence.
       In 2011, at multiple locations in Merced County, fences and buildings were
vandalized. The vandalism consisted of blue, triangle-shaped faces, the monikers
“Musket” and “Reson,” the name of two tagging crews, “FRNK” and “STDR,” and the
number “666.” The letters “MK” and “RS” also were spray painted.
       Lopez’s apartment was searched and sheriff’s deputies found graffiti paraphernalia
and notebooks with drawings similar to the graffiti found throughout Merced County.
The deputies found markers, spray paint, and slap tags, which are stickers. Some slap
tags had “666” on them; others had “MK.” The drawings in the notebook included the
word “Reson” and the letters “FRNK” and “STDR.” A spray-painted canvas found at the
apartment had “Reson” spray painted in the corner; Lopez admitted to being the one who
spray painted the canvas.



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       On March 23, 2011, the Merced County District Attorney filed an information
charging Lopez with felony vandalism, a violation of Penal Code section 594,
subdivisions (a)(1) and (b)(1),1 and misdemeanor vandalism, a violation of section 594,
subdivision (b)(2)(A).
       Trial began on September 27, 2011. Sheriff’s Deputy Lucas Hukill testified as an
expert on graffiti and vandals who create the graffiti. Hukill testified that “FRNK” stood
for “For Reasons Not Known” and “STDR” stood for “Stop The Devil’s Rejects”; both
groups were tagging gangs or crews. The two crews were associated with one another.
Hukill also testified that it is common for one tagger to have more than one moniker.
There were several reasons for using more than one moniker: to confuse law
enforcement, the tagger had switched crews, or the tagger was acting on his own and
needed to use a moniker not associated with any tagging crew. In Hukill’s opinion,
Musket and Reson were the same person and that person painted the blue triangle-shaped
faces and the “666” found throughout Merced County.
       Lopez presented testimony from Steven Rotman, who had published books titled
Bay Area Graffiti and San Francisco Street Art. Rotman was from the San Francisco Bay
area and spent time photographing graffiti in the Bay Area and posting the photos on a
Web site. Rotman opined that Reson and Musket were not the same person because their
graffiti art did not appear to be executed with the same ability; it was unusual for one
person to spray both his monikers at one graffiti location; and it was rare for a graffiti
artist to have more than one moniker.
       Rotman also testified that he had seen the graffiti found in the Merced County area
around the Bay Area beginning in 2009. The graffiti in the Bay Area included the
triangle-shaped faces and the “MK” moniker. Rotman testified, however, that the “K”
was actually a “U.” According to Rotman, “MU” stood for Musket or Muerte, who was
       1All   further statutory references are to the Penal Code unless otherwise stated.



                                               3.
the same person with two monikers. Rotman opined that the slap tags found in Lopez’s
apartment had “MU” and not “MK” on them; the slap tags were mass produced and
common in the Bay Area. Rotman had never seen the “666” in the Bay Area.
       Lopez’s girlfriend, Janee Butler, testified that she shared the apartment with Lopez
and that their former roommate, Nicholas Thomas, was the one who had brought the
spray paint to the apartment and had drawn in the notebooks. Butler testified that Lopez
did not have a moniker; Lopez had not traveled to the San Francisco area for years; and
she had never seen Lopez write in the notebooks.
       Thomas testified that he had lived with Lopez and Butler for awhile, but he took
all his possessions with him when he moved out. The notebooks and slap tags did not
belong to him and he had never brought spray paint into the apartment he previously
shared with Lopez. Thomas testified he did not spray paint “MK” or “Reson.” Thomas
was being prosecuted for a graffiti incident that took place in 2008.
       During closing argument, the prosecutor made a few comments to the effect that
graffiti lowers property values; graffiti is a cowardly, destructive act; the jury needed to
telegraph to the community that graffiti will not be tolerated; graffiti is not art; and
graffiti is vandalism. Defense counsel did not object to any of these remarks.
       On October 6, 2011, the jury found Lopez guilty of both counts. Lopez filed a
motion for new trial on January 26, 2012. The basis of the motion was newly discovered
evidence. Lopez claimed to have discovered a photographer who, while photographing a
store in San Francisco, saw someone spray paint “MU” or “MK” on a wall; the person
went by the moniker “Muerte.” The photographer did not know Muerte’s real name, but
did know that Lopez was not Muerte.
       The prosecution opposed the motion for new trial. The trial court conducted a
hearing on the motion on February 28, 2012. The trial court denied the motion.
       Imposition of sentence was suspended and Lopez was placed on probation for 36
months.

                                              4.
                                      DISCUSSION
       Lopez raises two issues in this appeal. First, he contends the trial court abused its
discretion in denying his motion for new trial. Second, he contends defense counsel
rendered ineffective assistance when counsel failed to object to comments made by the
prosecutor in closing argument.
I.     No Ineffective Assistance of Counsel
       Lopez contends defense counsel rendered ineffective assistance because counsel
failed to object to remarks made by the prosecutor in closing argument, remarks Lopez
contends appealed to the jury’s passion, prejudice, pecuniary interests, and other societal
pressures. We conclude there was no prejudicial ineffective assistance of counsel.
       Factual background
       The specific comments made by the prosecutor that Lopez asserts were improper
are set forth below. The first paragraph sets forth the remarks made by the prosecutor at
the opening of her closing argument, the next two paragraphs were comments made at the
end of closing argument, and the last paragraph is comments made during rebuttal.

              “Graffiti has become everyone’s eyesore and everyone’s problem. It
       generates fear of neighborhood crime and instability. It’s costly. It’s
       destructive. It lowers property values and sends a message that the
       residents of the community are not concerned with the appearance of their
       neighborhood. Graffiti is not art. It’s vandalism and it’s against the law.”

              “Ladies and gentlemen of the jury, this is not a victimless crime.
       The defendant hasn’t only victimized every hard working business owner in
       this community, but he’s victimized every law abiding resident in this
       community. This trial and this trail of evidence has finally come full circle
       and exposed the identities of the graffiti vandals who committed these
       cowardly, destructive acts under the cloak of darkness.

             “That graffiti vandal is sitting before you. That graffiti vandal is
       [Lopez]. Hold the defendant accountable for those cowardly acts that he
       has committed under the cloak of darkness.”

              “And now, ladies and gentlemen, it is your responsibility to
       telegraph to the community that graffiti will not be tolerated, and the

                                             5.
       graffiti vandals who commit these destructive crimes will say [sic] held
       accountable for their actions.”
       There was no objection to any of these remarks by defense counsel.
       Analysis
       “The burden of proving ineffective assistance of counsel is on the defendant.
[Citation.]” (People v. Babbitt (1988) 45 Cal.3d 660, 707.) A criminal defendant must
show both deficient performance (“that trial counsel failed to act in a manner to be
expected of reasonably competent attorneys acting as diligent advocates”) and prejudice
(“that it is reasonably probable a more favorable determination would have resulted in the
absence of counsel’s failings).” (People v. Price (1991) 1 Cal.4th 324, 386.) If a
defendant fails to prove either one of these components, the claim of ineffective
assistance of counsel fails. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126
(Rodrigues).)
       Regardless of whether the prosecutor’s comments were improper, Lopez was not
prejudiced. Prosecutorial misconduct requires reversal only if it prejudices the defendant.
(People v. Fields (1983) 35 Cal.3d 329, 363.) Where it infringes upon the defendant’s
constitutional rights, reversal is required unless the reviewing court determines beyond a
reasonable doubt that the misconduct did not affect the jury’s verdict. (People v. Harris
(1989) 47 Cal.3d 1047, 1083.) Prosecutorial misconduct that violates state law is cause
for reversal only when it is reasonably probable that a result more favorable to the
defendant would have occurred had the prosecutor refrained from the objectionable
conduct. (People v. Barnett (1998) 17 Cal.4th 1044, 1133 (Barnett).)
       Here, the comments made by the prosecutor were interspersed with a detailed
recitation of the elements of the offenses and the facts of the case establishing those
elements. The objected-to comments were not the focus of the prosecutor’s closing
argument; a recitation of the evidence supporting the elements of the offenses was the
focus. Even assuming for the sake of argument that the comments constituted an



                                             6.
improper appeal to the jurors, the jurors were instructed to evaluate and decide the case
based upon the evidence, not the comments of the attorneys in the case. The jurors were
instructed not to let bias, sympathy, prejudice, or public opinion influence their decision,
to follow the instructions given by the trial court, and that if remarks from the attorneys
conflicted with the instructions, jurors were to follow the instructions.
       “‘[A]rguments of counsel “generally carry less weight with a jury than do
instructions from the court. The former are usually billed in advance to the jury as
matters of argument, not evidence [citation], and are likely viewed as the statements of
advocates; the latter, we have often recognized, are viewed as definitive and binding
statements of the law.” [Citation.]’ [Citation.] ‘When argument runs counter to
instructions given a jury, we will ordinarily conclude that the jury followed the latter and
disregarded the former, for “[w]e presume that jurors treat the court’s instructions as a
statement of the law by a judge, and the prosecutor’s comments as words spoken by an
advocate in an attempt to persuade.” [Citation.]’ [Citation.]” (People v. Katzenberger
(2009) 178 Cal.App.4th 1260, 1268.)
       The evidence in the case established that deputies found slap tags, spray paint,
markers, and notebooks with drawings similar to the graffiti that was the basis of the
current charges in Lopez’s apartment; the notebook had the name “Reson” inside. A
spray-painted canvas was in Lopez’s apartment, with the moniker “Reson” sprayed on
the canvas; Lopez admitted spraying the canvas and the placing the moniker “Reson” on
the canvas. Lopez previously had admitted and been convicted in 2006 of spray painting
graffiti on a fence; the 2006 graffiti was the blue triangle-shaped faces similar to those
used in the 2011 graffiti.
       In light of the evidence connecting Lopez to the offenses and the instructions
given the jury, it is not reasonably probable that a result more favorable to Lopez would
have occurred had the prosecutor refrained from making the challenged remarks.
(Barnett, supra, 17 Cal.4th at p. 1133.) Because Lopez has failed to demonstrate that he

                                              7.
suffered any prejudice from the remarks, the claim of ineffective assistance of counsel
fails. (Rodrigues, supra, 8 Cal.4th at p. 1126.)
II.    Motion for New Trial
       Lopez contends the trial court abused its discretion when it denied his motion for
new trial on the basis of newly discovered evidence that Lopez contends exonerated him.
He is incorrect.
       Factual summary
       Following the jury verdict, Lopez filed a motion for new trial. He claimed that a
new witness had been discovered who could testify that Lopez was not the person known
as Musket or Muerte. In an attached declaration, the newly discovered witness, Joshua
Blank, stated that he was a photographer in San Francisco. About eight months
previously, Blank had been photographing a building in the Bay Area when some men
arrived and began spray painting the building. One person doing the spray painting was
known as Muerte and Blank was allowed to photograph the man, so long as he did not
photograph the man’s face. Although Blank did not know Muerte’s real name, he knew
that Muerte operated mostly around Oakland and Lopez was not Muerte.
       The prosecutor opposed the motion on various grounds, including that Blank’s
declaration was vague and lacked sufficient credibility to support a new trial in that Blank
did not attach any photographs he took of Muerte or the graffiti Blank saw Muerte spray
on the building; the declaration contained inadmissible hearsay; Lopez could have
produced this evidence before the conclusion of trial by exercising due diligence; and the
evidence was cumulative.
       The trial court heard and ruled on the motion on February 28, 2012. In denying
the motion, the trial court determined that Blank’s declaration did not contradict the
evidence against Lopez; Lopez failed to establish that the outcome of the trial would be
different if the evidence had been produced at trial; and Lopez could have produced the
evidence before the conclusion of trial by exercising due diligence.

                                             8.
       Analysis
       Section 1118 authorizes grant of a new trial based upon newly discovered
evidence. The applicable standard is well established:
       “In ruling on a motion for new trial based on newly discovered evidence, the trial
court considers the following factors: ‘“1. That the evidence, and not merely its
materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That
it be such as to render a different result probable on a retrial of the cause; 4. That the
party could not with reasonable diligence have discovered and produced it at the trial; and
5. That these facts be shown by the best evidence of which the case admits.”’
[Citations.]” (People v. Turner (1994) 8 Cal.4th 137, 212.)
       “‘The determination of a motion for a new trial rests so completely within the
court’s discretion that its action will not be disturbed unless a manifest and unmistakable
abuse of discretion clearly appears.’ [Citations.]” (People v. Williams (1988) 45 Cal.3d
1268, 1318.) The appellate court may base its affirmance of the trial court’s decision
solely on the unlikeliness of a different result on retrial. When it does so, it need not
address the remainder of the listed factors. (See, e.g., People v. Delgado (1993) 5 Cal.4th
312, 329, fn. 7.) The credibility, as well as the materiality, of the newly discovered
evidence is relevant. (Id. at p. 329.)
       Denial of the new trial motion was not an abuse of discretion because the newly
discovered evidence likely would not have altered the outcome of Lopez’s trial. Had
Blank testified that he saw graffiti in the Bay Area similar to that found in Merced
County and that it was spray painted by someone other than Lopez, is not likely to have
changed the outcome of the trial. First, the newly discovered evidence was cumulative;
and second, it did not overcome the evidence against Lopez connecting him to the
offenses.
       The evidence set forth in Blank’s declaration in support of the new trial motion
was cumulative of the testimony presented by the defense expert, Rotman, and Butler,

                                              9.
Lopez’s girlfriend. Rotman testified that the graffiti found in Merced County was similar
to that found in the Bay Area, including the “MU” or “MK” graffiti and the triangle-
shaped faces. Butler testified Lopez did not have a moniker and had not been to the Bay
Area in years.
       The evidence against Lopez was very strong: the canvas in his apartment with
“Reson” spray painted on it, which Lopez admitted doing; the notebooks in the apartment
with drawings similar to the graffiti in Merced County, the name “Reson” inside the
notebook, and the name of Lopez’s young son inside the notebook; and the 2006 graffiti
offense that Lopez admitted, where the graffiti was substantially similar to the graffiti
that was the basis of the current charges.
                                      DISPOSITION
       The judgment is affirmed.




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