Filed 10/6/14 P. v. Jones 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                                           NOT TO BE PUBLISHED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
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 This opinion has not been certified for publication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.




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



THE PEOPLE,                                                                                  C073559

                   Plaintiff and Respondent,                                    (Super. Ct. No. CRF124251)

         v.

THOMAS JONES IV,

                   Defendant and Appellant.




         A jury found defendant Thomas Jones IV guilty of second degree robbery (Pen.
Code, § 211),1 elder abuse (§ 368, subd. (c)(1)), and three counts of unlawfully using tear
gas (§ 22810, subd. (g)). After defendant admitted serving three prior prison terms, the
trial court sentenced him to an aggregate term of eight years eight months in state prison.
         On appeal, defendant contends it was error to convict him on three counts of
unlawfully using tear gas because, although three people were injured by the tear gas, he




1   Undesignated statutory references are to the Penal Code.

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only “used” the tear gas once. Defendant also contends the prosecution committed
misconduct in its closing argument. We conclude two of defendant’s convictions for
unlawful use of tear gas should be stricken, but defendant has forfeited his claim of
prosecutorial misconduct. We shall modify the judgment accordingly.
                                             I.
                                     BACKGROUND
       On October 27, 2012, 76-year-old Margaret Ray parked in front of a shopping
center and got out of her van, holding her keys and her cane in her right hand and her
purse over her left shoulder. Defendant rode up to Ray on his bicycle and grabbed the
strap of her purse. Defendant yanked on Ray’s purse and the strap slipped down her left
arm to her hand; he yanked again and pulled the purse free. Defendant then “hopped his
bike up on a [curb]” and rode away.
       As defendant turned the corner of the building, Ray yelled for help. Three men
(Douglas Foster, Andrew Wing, and Shawn McMahon) came out of a nearby “Liberty
Safe” store and chased defendant; Ray called 911. Foster saw defendant on his bike but
did not see defendant’s face; he ran after defendant. Wing ran out the back of the store,
where he caught up with Foster; they continued to chase defendant together. McMahon
did not want to leave the store unattended and open so he stayed behind to lock the doors.
He then ran after Foster and Wing.
       At some point, defendant ended up at the bottom of a loading bay beside his bike.
When they got to the loading bay, Wing and Foster saw defendant going through his
backpack. Foster did not see a purse, Wing saw defendant put a purse inside his
backpack, and another person who was there thought he saw defendant had a gun.
Defendant then pulled out a “canister.” McMahon had by then gotten to the loading bay,
but from a different location than did Foster and Wing.
       Defendant started to ride his bike out of the loading bay, riding toward Wing and
Foster. McMahon asked Foster and Wing if this was the guy who stole Ray’s purse; they

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said he was. So McMahon dove toward defendant, who was still on his bike. Defendant
asked McMahon, “Do you want some of this?” and sprayed McMahon with pepper spray.
Defendant then rode away on his bike, dropping the canister on the ground. Foster and
Wing ran to help McMahon, and they too felt the effects of the pepper spray.
       Defendant was later arrested and charged with second degree robbery (§§ 211 &
212.5, subd. (c)), abusing or endangering the health of an elderly person under
circumstances likely to produce great bodily injury or death (§ 368, subd. (b)(1)), three
counts of unlawfully using tear gas (§ 22810, subd. (g)), and one count of falsely
identifying himself to a police officer (§ 148.9, subd. (a)). The People also alleged
defendant served three prior prison terms within the meaning of section 667.5,
subdivision (b).
       In closing arguments, the prosecution attempted to illustrate the beyond-a-
reasonable-doubt standard of proof by revealing in bits and pieces a well-known painting:
“Another way of looking at it is enough is enough. Here we have a slide, there’s a
painting there, it’s covered partially by a blue shield. Some of you may right now
recognize what that is. Some of you might not. You clearly can’t see the whole thing.
Maybe some of you will decide you have an abiding conviction that you know what it is
when you saw the crossed hands. Maybe some of you will decide you have an abiding
conviction when you see the shoulders. Maybe some of you will not decide that you
have an abiding conviction until you see the famous smile. But it’s going to be different
for everybody.”
       A jury later found defendant guilty of the lesser included offense of abusing or
endangering the health of an elder under circumstances not likely to result in great bodily
injury (§ 368, subd. (c)(1)), and guilty on all other charges. Following his conviction, the
trial court sentenced defendant to an aggregate term of eight years eight months in state
prison. The trial court awarded defendant 161 days of custody credit and ordered him to
pay various fines and fees. Defendant appeals.

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                                              II.
                                       DISCUSSION
A.     Multiple Convictions for Use of Tear Gas
       Defendant contends two of his three convictions for the unlawful use of tear gas
must be stricken because under the plain language of the statute, the use of tear gas “is
not punishable per person injured by the spray but rather per incident,” and while he
injured three people, he only “used” the spray once. The People agree and we find their
analysis persuasive.
       Section 22810, subdivision (g)(1) provides in relevant part that “[e]xcept as
provided in paragraph (2), any person who uses tear gas or any tear gas weapon except in
self-defense is guilty of a public offense . . . .” (Italics added.) We agree with the
People’s interpretation of the statutory language that the “gravamen of the offense”
appears to be the “use” of the tear gas itself, not the number of people harmed. Thus, like
the brandishing of a weapon (§ 417, subd. (a)(1)), the use of pepper spray is not a crime
upon the person but a crime committed in someone’s presence. (See In re Peter F.
(2005) 132 Cal.App.4th 877, 878-879 [brandishing a deadly weapon in the presence of
another is not an act of violence upon that person but an act committed in the person’s
presence].) As such, a single act of using tear gas can only support a single conviction,
no matter how many people were injured. (Ibid.)
       It is undisputed that defendant here only “used” the pepper spray once, when he
sprayed it at McMahon. Then he dropped the canister and fled the scene. We conclude
that under the plain language of the statute, that single unlawful use of tear gas, which
resulted in injuring three people, can give rise to only a single conviction for unlawfully
using tear gas.
B.     Prosecutorial Misconduct
       Defendant contends the prosecutor committed misconduct in closing argument by
revealing a picture of an iconic image in isolated pieces in order to illustrate the

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reasonable doubt standard of proof, thus, defendant argues, effectively “diluting” the
prosecution’s burden of proof.
       In seeking a criminal conviction, the prosecution is prohibited from engaging in
“ ‘ “ ‘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.]’ ” (People v. Hill (1998)
17 Cal.4th 800, 819, quoting People v. Gionis (1995) 9 Cal.4th 1196, 1214.)
Nonetheless, “ ‘[c]onduct 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.” ’ ” ’ (People v. Samayoa (1997) 15 Cal.4th 795, 841 . . . .)” (People v.
Navarette (2003) 30 Cal.4th 458, 506.) However, “[a] defendant’s conviction will not be
reversed for prosecutorial misconduct . . . unless it is reasonably probable that a result
more favorable to the defendant would have been reached without the misconduct.
(People v. Barnett (1998) 17 Cal.4th 1044, 1133 . . . .) Also, a claim of prosecutorial
misconduct is not preserved for appeal if defendant fails to object and seek an admonition
if an objection and jury admonition would have cured the injury. (People v. Scott (1997)
15 Cal.4th 1188, 1217 [(Scott)].)” (People v. Crew (2003) 31 Cal.4th 822, 839 (Crew).)
       Here, defendant did not object on any ground to the portion of the prosecutor’s
closing argument regarding the standard of proof or assert a prosecutorial misconduct
claim. On appeal, defendant makes no argument that an admonition would not have
cured any harm caused by the purported misconduct. Consequently, defendant failed to
preserve the issue of prosecutorial misconduct in misdescribing the requirement of proof
beyond a reasonable doubt. (Crew, supra, 31 Cal.4th at p. 839; Scott, supra, 15 Cal.4th
at p. 1217.)




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C.     Ineffective Assistance of Counsel
       Anticipating that his claim of prosecutorial misconduct would be deemed forfeited
by the failure to object at trial, defendant also contends his trial counsel was ineffective
for failing to object. We disagree.
       “To demonstrate ineffective assistance of counsel, a defendant must show that
counsel’s action was, objectively considered, both deficient under prevailing professional
norms and prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct.
2052, 80 L.Ed.2d 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. (Id. at p. 694 . . . .)” (People v. Burgener (2003)
29 Cal.4th 833, 880.) Moreover, “ ‘ “a court need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies.” [Citation.]’ ” (People v. Rodrigues (1994) 8 Cal.4th
1060, 1126.)
       Here, defendant has failed to establish he was prejudiced by counsel’s failure to
object during the prosecutor’s illustration of the burden of proof. Whether the prosecutor
misstated or diluted the burden of proof in closing argument, the trial court admonished
the jury that the arguments of counsel on the burden of proof did not state the law and
that the jury was required to follow the instructions given by the court. “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.]” (People v.
Osband (1996) 13 Cal.4th 622, 717.)
       The trial court also correctly instructed the jury with CALCRIM No. 220 on the
definition of proof to prove beyond a reasonable doubt. On appeal, “[w]e assume the
jury abided by the court’s admonitions and instructions, and thereby avoided any

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prejudice.” (People v. Stitely (2005) 35 Cal.4th 514, 559.) Thus, on this record, we find
no prejudice. (People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1268-1269.)
                                           III.
                                     DISPOSITION
      Defendant’s convictions for the unlawful use of tear gas in counts three and five
are hereby stricken. The judgment is otherwise affirmed. The trial court is directed to
prepare an amended abstract of judgment and to forward a certified copy of the amended
abstract of judgment to the Department of Corrections and Rehabilitation.



                                                          RAYE              , P. J.



We concur:



         BLEASE            , J.



         DUARTE            , J.




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