Filed 3/7/16 P. v. Thompson CA3
                                           NOT TO BE PUBLISHED
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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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C079011

                   Plaintiff and Respondent,                                     (Super. Ct. Nos. 13F03267,
                                                                                         13F06424)
         v.

ISAIAH JERMAINE THOMPSON,

                   Defendant and Appellant.




         A jury found defendant Isaiah Thompson guilty of being a felon in possession of a
firearm and resisting a peace officer in the performance of his duties. He appeals,
contending the prosecutor committed misconduct in closing argument by making
arguments that shifted the burden of proof and lowered the standard of proof and his
counsel’s failure to join in his codefendant counsel’s objections to the improper argument
amounted to ineffective assistance of counsel. In fact, however, it was defendant’s
counsel -- not his codefendant’s counsel -- who objected to the prosecutor’s allegedly
improper argument, and thus there was no ineffective assistance of counsel for failure to

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object. In any event, the prosecutor’s argument did not amount to misconduct.
Accordingly, we affirm.
                    FACTUAL AND PROCEDURAL BACKGROUND
         On the afternoon of October 2, 2013, Sacramento Police Officer David Putman
and his partner, Officer Orlando Morales, were on patrol together in a marked police car
and observed a white station wagon speeding. The officers attempted to stop the
speeding vehicle, activating lights and siren.
         Defendant Isaiah Thompson was the front-seat passenger of the vehicle driven by
codefendant Michael Charles Lark. Lark initially slowed down, but failed to stop and
then sped off. Officer Morales immediately gave chase while Officer Putman reported
the pursuit on the police radio. The high-speed pursuit covered approximately nine
miles.
         During the chase, both officers observed a firearm fly out of the passenger side of
the suspect’s vehicle and land on the shoulder of the highway. The pursuit ended with
the suspect’s vehicle colliding with another vehicle. Defendant fled on foot. Both
officers pursued defendant, shouting orders multiple times for defendant to stop and get
on the ground. After about 150 to 200 yards of foot pursuit, Officer Morales tackled
defendant. Defendant kept his right arm under his body and would not allow it to be
handcuffed. After Officer Putman struck defendant in the face about three times,
defendant complied and Officer Morales cuffed him.
         Defendant was charged with being a felon in possession of a firearm and resisting
a peace officer. He was tried along with Lark.
         During the prosecutor’s closing argument, he explained how both defendant and
Lark could possess a single firearm by arguing, “Mr. Thompson threw that firearm out of
that car for the mutual benefit of Mr. Lark and himself. They both knew they had a
felony and they could not be in possession of a firearm. And that’s how the law
recognizes situations like this.”

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       During closing argument, defendant’s attorney addressed the prosecution’s claim
that the codefendants had a preexisting relationship, and both knew that neither could
have a gun. Defendant’s counsel argued, “Where is the evidence of that? Where is the
evidence that Mr. Lark or Mr. Thompson knew each other at all before October 2nd of
2013?”
       Near the end of her argument, defendant’s counsel addressed the reasonable doubt
standard by reminding the jury of the judge’s reading of the CALCRIM No. 220
instruction that defined reasonable doubt as proof that leaves one with the abiding
conviction that a charge is true. To illustrate the “abiding conviction” concept she shared
a story she heard from one of her colleagues who was approached by a former juror in a
grocery store. After a few minutes of “small talk” the juror said, “I just got to know, did
he do it?” The attorney was devastated because that juror had voted to convict her client.
Defendant’s counsel argued that such a question indicated “that juror did not have an
abiding conviction that the charge was true.”
       Later, the prosecutor began his final rebuttal argument. Addressing the contention
of defendant’s counsel that there was a lack of evidence regarding a prior relationship
between the codefendents, the prosecutor argued as follows:
       “A lot of the evidence that defense talks about is missing evidence, okay? They
are asking you to speculate. We don’t know if Mr. Lark and Mr. Thompson knew each
other. All right.
       “You know what? A piece of paper has the power of a subpoena. Let’s serve
somebody, let’s have them come in here and tell us Mr. Lark and Mr. Thompson don’t
know each other.” Defendant’s counsel objected; Lark’s counsel did not.
       After a sidebar, the court overruled the objection. The prosecutor then added,
“That’s the failure to call a logical witness, if that is evidence.”
       Later in his argument, the prosecutor returned to the reasonable doubt standard by
offering the following observation and hypothetical:

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       “Nobody likes finding somebody guilty. It’s not, you know, an enviable task, but
it’s important to uphold these laws. So an abiding conviction, that means that you can
look back and you know you did the right thing.
       “Let’s say, another hypothetical, two months from now you are in your front yard,
maybe washing the car, and your neighbor comes up to you and says, hey, I know you
were on jury duty like two months ago, so your service is over, you are free to talk about
it, you are free to discuss it, what was the case about?
       “Well, you know, this white sedan was being pulled over for speeding, for some
reason it took off. There was no other reason for it to be pulled over but speeding, but it
just took off. And on the freeway, through the passenger side came a gun. And then it
wrecked, and the driver and the passenger ran. Both had felony convictions, which made
it unlawful to possess a firearm, and we found both people guilty.
       “Do you think that your neighbor is going to look at you and think what? That
sounds insane.”
       Defendant’s counsel objected, citing “improper argument.” Again, Lark’s counsel
did not object. The court dismissed the jury for lunch and then heard from both sides
regarding the objection. The court overruled the objection and told defendant’s counsel:
       “I think, quite frankly, this might be tit for your tat in the sense of your illustration
to the jury about your workmate’s experience with a juror who comes up [to your
workmate] . . . in the grocery store saying, okay, tell me did he or she do it. [¶] . . . [¶]
Yours was illustrious. I think this is somewhat in response to that comment. I view this
as an attempt to put into working practice this concept of an abiding conviction. That
was the point that both of you were stressing at the time that each of you used your
respective examples.”
       After the lunch break, but before the jury returned, the court and counsel met to
follow up on both objections and establish a record of the sidebar discussion. The court
noted defendant’s counsel’s first objection on the ground of burden shifting, but

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overruled it because the prosecutor’s comments “made no reference or representation to
the jury as to what any other hypothetical witnesses would have said had they been called
forward.” The court instructed the prosecutor not to give the jury hypothetical evidence
of what a hypothetical defense witness might say. The prosecutor agreed, saying that was
not his intention. In addition, the court overruled defendant’s counsel’s objection to the
prosecutor’s inquisitive neighbor hypothetical, but decided to make a clarifying
admonition to the jury upon its return to avoid confusion and reemphasize the CALCRIM
No. 220 standard of proof.
       After returning from lunch, the court admonished the jury as follows:
       “Ladies and gentlemen, right before the lunch hour there was a comment made by
our prosecutor that drew an objection by [defendant’s counsel]. We had an opportunity
to discuss that outside of your presence. I am overruling the objection, but it does, in my
opinion, necessitate a quick comment to you.
       “And this is what I would tell you: If you recall briefly, the example being used
by [the prosecutor] was a hypothetical conversation between yourself and a neighbor in
which there was a recount, a summary of some of the evidence, and a position asserted by
the People that, based upon that hypothetical conversation, you would be entitled to have
confidence in -- in your decision; to wit, it was provided as an example of what it means
to have an abiding conviction in the truth of the charge.
       “I just want to ensure something, and this is why I’m making this statement to
you. The appropriate standard and the only standard you can use in your deliberative
process in reaching a decision on guilt or innocence is beyond -- proof beyond a
reasonable doubt. And you know, from the instructions just read to you, that is defined
for you in [CALCRIM No.] instruction 220.
       “I don’t want any of you thinking that the standard is actually proof sufficient to
satisfy an inquisitive neighbor or proof sufficient to lead a neighbor to believe that your



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decision is a reasonable one. The only standard you can use is proof beyond a reasonable
doubt as defined to you in 220.
       “The example, again, may be a very valid one, as the lawyers, and in this case, the
DA wants you to understand the concept of having an abiding conviction in the truth of
the charge, and that is a component part of the 220 instruction.
       “For that purpose that illustration is fine, but I didn’t want it to create any
confusion on you and lead you astray. Proof beyond a reasonable doubt is your standard.
Okay.”
       The prosecutor then finished his final argument.
       The jury found defendant guilty of being a felon in possession of a firearm and
delaying a peace officer. The court sentenced defendant to an aggregate term of 11 years
and 4 months in prison.
       Defendant filed a timely notice of appeal.
                                        DISCUSSION
                                               I
                     There Was No Ineffective Assistance Of Counsel
       Defendant complains that his counsel’s failure to join in the objections of his
codefendant’s counsel to the prosecutor’s final argument constituted ineffective
assistance of counsel. We disagree because it was defendant’s counsel, not his
codefendant’s counsel, who made timely objections during the prosecutor’s final
argument. Accordingly, there was no ineffective assistance, and we turn to the question
of whether the prosecutor’s arguments constituted misconduct.
                                               II
                                   Prosecutorial Misconduct
       Defendant contends his constitutional right to due process of law was violated by
the prosecutor’s misconduct during final argument because the prosecutor’s improper



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argument “both lightened the prosecution’s burden of proof and required appellant to
prove his innocence.” We disagree.
       The standards used to evaluate prosecutorial misconduct are well established. “A
prosecutor’s misconduct violates the Fourteenth Amendment to the United States
Constitution when it ‘infects the trial with such unfairness as to make the conviction a
denial of due process.’ [Citations.] In other words, the misconduct must be ‘of sufficient
significance to result in the denial of the defendant’s right to a fair trial.’ [Citation.] A
prosecutor’s misconduct that does not render a trial fundamentally unfair nevertheless
violates California law if it involves ‘the use of deceptive or reprehensible methods to
attempt to persuade either the court or the jury.’ ” (People v. Cole (2004) 33 Cal.4th
1158, 1202.) To establish such misconduct “bad faith on the part of the prosecutor is not
required.” (People v. Centeno (2014) 60 Cal.4th 659, 666.)
       A defendant’s attack on the prosecutor’s statements to the jury must show that
“ ‘[i]n the context of the whole argument and the instructions,’ ” 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.’ ” (People v. Centeno, supra, 60 Cal.4th at
p. 667.)
                                                   A
               Comment On Failure To Call Logical Witness Was Not Misconduct
       Defendant argues that the prosecutor’s comment that defense counsel could have
subpoenaed a witness (to prove the two defendants did not know each other) “improperly
shifted the burden onto [defendant]” and “lightened the prosecutor’s burden of proving
[defendant]’s guilt beyond a reasonable doubt.” We disagree.
       The Fifth and Fourteenth Amendments to the United States Constitution forbid
“comment by the prosecution on the accused’s silence.” (Griffin v. California (1965)

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380 U.S. 609, 615 [14 L.Ed.2d 106, 110].) On the other hand, it is not improper for a
prosecutor to “comment upon a defendant’s failure ‘to introduce material evidence or to
call logical witnesses.’ ” (People v. Wash (1993) 6 Cal.4th 215, 263.) A prosecutor
commits misconduct, however, “when he purports to tell the jury why a defense witness
did not testify or what the testimony of that witness would have been.” (People v. Gaines
(1997) 54 Cal.App.4th 821, 822.)
        Here, the prosecutor did not commit misconduct because his comment did not
cross the line into improper speculation as to why a “logical witness” was not called, or
what the hypothetical witness would have said. During the postobjection sidebar, the
prosecutor explained that his intention was not to speculate, but merely to address the
missing logical witness. He also agreed with the court’s instruction not to enter into
speculation.
        We conclude the prosecutor did not commit misconduct because the prosecutor
did not speculate or represent to the jury what a hypothetical witness would have said had
he or she been called. His comment did not shift the burden of proof, but instead was a
permitted reference to the state of the evidence and the failure of the defense to call a
logical witness.
                                                  B
                     Inquisitive Neighbor Hypothetical Was Not Misconduct
        Defendant contends the prosecutor’s inquisitive neighbor hypothetical
“improperly urged the jury to apply a lower standard of proof.” He further contends that
“[g]iven the difficulty of the [beyond a reasonable doubt] concept, one or more jurors
could have easily followed the prosecutor’s erroneous argument.” We disagree.
        “When the claim focuses on the prosecutor’s comments to the jury, we determine
whether there was a reasonable likelihood that the jury construed or applied any of the
remarks in an objectionable fashion.” (People v. Booker (2011) 51 Cal.4th 141, 184-
185.)

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       Our Supreme Court has noted that “[t]he case law is replete with innovative but
ill-fated attempts to explain the reasonable doubt standard. [Citations.] We have
recognized the ‘difficulty and peril inherent in such a task,’ and have discouraged such
‘experiments’ by courts and prosecutors. [Citation.] We have stopped short, however, 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.” (People v.
Centeno, supra, 60 Cal.4th at p. 667.)
       In addressing the issues raised by defense counsel, the trial court recognized that
both the prosecutor and defendant’s counsel used examples in their respective closing
arguments to explain the concept of an “abiding conviction,” which is a component part
of the CALCRIM No. 220 instruction.1
       First, defendant’s counsel relayed the story of a colleague speaking to a former
juror in the grocery store. The juror’s lack of an “abiding conviction” was revealed by
her query, “I just got to know, did he do it?” Defendant’s counsel’s argument was that to
have an “abiding conviction that the charge was true” meant to have a conviction that
would remain over time and not evaporate into a nagging doubt like that which prompted
the juror’s question.
       Later, during final argument, the prosecutor illustrated the “abiding conviction”
concept through the use of a hypothetical that asked members of the jury to imagine
themselves talking to a neighbor two months later. When the inquisitive neighbor asked
about the juror’s duty and what the case was about, the juror reported the attempted
traffic stop, high speed chase, thrown gun, car wreck, fleeing defendants, and the jury’s




1      CALCRIM No. 220 provides in relevant part, “Proof beyond a reasonable doubt is
proof that leaves you with an abiding conviction that the charge is true. The evidence
need not eliminate all possible doubt because everything in life is open to some possible
or imaginary doubt.”

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guilty verdict of illegal possession of a firearm. The prosecutor then said, “[d]o you think
your neighbor is going to look at you and think what? That sounds insane.”
          Defense counsel objected, citing “improper argument.” The trial court perceived
the prosecution’s hypothetical as a response to defendant’s counsel’s story and viewed
the issue from the perspective that both sides had “attempt[ed] to put into working
practice this concept of an abiding conviction. That was the point that both of you were
stressing at the time that each of you used your respective examples.”
          We agree with the trial court. Both sides were attempting to remind the jury that
verdicts based on the CALCRIM No. 220 reasonable doubt standard should provide each
juror with an “abiding conviction” that will not evaporate in the ensuing weeks, months,
or years. The prosecutor’s story highlighted a juror’s lack of abiding conviction, while
defendant’s counsel’s hypothetical focused on how an abiding conviction would endure
over time and affect the confidence with which a former juror reported on the case to
others.
          Defendant’s contention that the prosecutor’s hypothetical confused the jury by
introducing a lower standard of proof is without merit. The trial court found that neither
side expressed, or implied, that a lower standard of proof be adopted, and we agree with
that assessment.
          We acknowledge that illustrations are imperfect vessels for the transfer of
concepts and ideas. If pushed too far, every illustration breaks down or proves too much.
This is especially true when illustrating challenging concepts, such as the reasonable
doubt standard. However, we conclude that no such distortion was advanced by the
advocates in this case. As such, there was no reasonable likelihood that the jury would
construe or apply the prosecutor’s hypothetical in an objectionable way.
          Therefore, the prosecutor’s inquisitive neighbor hypothetical was neither
deceptive nor reprehensible, and thus its use did not constitute misconduct.



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                                   DISPOSITION
       The judgment is affirmed.



                                            /s/
                                            Robie, Acting P. J.



We concur:



/s/
Butz, J.



/s/
Duarte, J.




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