Filed 11/6/15 P. v. Ramos CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT


THE PEOPLE,                                                          B261608

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. MA061126)
         v.

CESAR RAMOS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Lisa M.
Chung, Judge. Affirmed.



      David Cohen, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Robert
C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.


                                       __________________________
       Cesar Ramos appeals from his conviction on one count of assault with a deadly
weapon, contending that the prosecutor committed misconduct by referring to Ramos’s
prior conviction for the same offense during closing argument and during his cross-
examination of Ramos. We reject these contentions and therefore affirm the judgment.

                       FACTS AND PROCEDURAL HISTORY

       On the night of September 8, 2013, Freddy Pina and his family were attending a
birthday party for Pina’s one-year-old great-niece at a park in Palmdale. Pina’s nephew,
Erick Berios had gone to use the restroom. As Berios left the restroom, Pina saw three
men surround Berios – Cesar Ramos, Noe Diaz, and Rafael Santana, all members of the
Playboys gang.
       Pina went over to see what was happening and heard Diaz ask Berios where he
was from. Pina told the three men that he did not want any problems. Diaz replied that
Pina was in Playboys’ territory. Pina’s wife and another nephew came to investigate, but
soon after a fight broke out between the two sides. Ramos hit Pina above his left eye
with a beer bottle, causing a wound that required 39 stitches and leaving him with
occasional double vision. Ramos, Diaz, and Santana ran off, but Diaz threatened to
return with a “strap,” which presumably meant a gun.
       Ramos, Diaz, and Santana were tried jointly after each was charged with one
count of assault with a deadly weapon against Pina (Pen. Code, § 245, subd. (a)(1)),
along with allegations that the crime was committed for the benefit of their gang (Pen.
Code, § 186.22, subd. (b)(1)).1 The information also alleged that Diaz and Ramos
personally inflicted great bodily injury for purposes of the three-year-sentence
enhancement provided by section 12022.7, subdivision (a), and that Ramos had a prior




1      All further section references are to the Penal Code.
                                               2
conviction for assault with a deadly weapon for the purposes of other sentence
enhancement provisions.2
       Pina, Pina’s wife, and his two nephews testified that Defendant Ramos struck Pina
with the bottle. One of the nephews was impeached with his statement to the police 12
days after the incident where he identified someone else as the bottle thrower. Ramos
testified that he had gone to the park to meet a girl and was focused on his conversation
with her when he saw Diaz being attacked by Pina’s group. According to Ramos, he
intervened solely in order to protect his friend and someone else threw the bottle at Pina.
One of the girls in Ramos’s group testified that Ramos did not throw the bottle.
       The jury convicted Ramos, Diaz, and Santana. It found true the allegation that
Ramos personally inflicted great bodily injury, but found the gang allegation not true.
Ramos admitted his prior conviction and was sentenced to 16 years in state prison. Only
Ramos is involved in the present appeal.
       Ramos’s appeal centers on the trial court’s decision to let the prosecution
introduce evidence that Ramos had been convicted of assault with a deadly weapon,
along with a street gang benefit allegation, in 2013. The trial court ruled that the
evidence was admissible for one purpose only: to show the predicate pattern of criminal
activity necessary to prove that the Playboys was a criminal street gang. Ramos contends
the prosecutor committed misconduct by improperly referring to that conviction during
both closing argument and cross-examination of Ramos in order to show that Ramos was
predisposed to commit assaults.

                                           DISCUSSION

1.     Facts Underlying the Misconduct Claims

       Over a defense objection the trial court ruled that the prosecution could introduce
evidence that Ramos had been convicted in 2013 of assault with a deadly weapon, along

2
       The information also alleged that Diaz and Santana had other prior convictions for
purposes of certain sentence enhancements, but those are not relevant to the issues on
appeal.
                                            3
with a street gang benefit finding, for the sole purpose of showing that the current offense
was committed to benefit Ramos’s gang. The evidence could not, however, be used to
show that Ramos had a predisposition to commit the current offense. The jury was later
instructed accordingly.
       Ramos testified in his own behalf, and during direct examination by his lawyer
was asked whether “you were convicted of a felony in the past?” Ramos answered yes.
He was then asked why he “g[ot] into this fight?” and responded, “The one I got
convicted for?” His lawyer clarified that he was asking about “This one, the one today
we’re in trial for.”
       The prosecutor cross-examined Ramos about the typical activities and conduct of
the Playboys gang, eliciting admissions that the Playboys fights with other gangs, often
escalating into gun use, and that it was considered important to protect the gang’s name
in order to maintain respect. The prosecutor then asked: “Now, you mentioned your
prior felony conviction. That was for a [Penal Code section 245, subdivision (A)(1)] with
a gang allegation; correct?” After Ramos answered yes, the prosecutor asked whether
that conviction occurred in January 2013 and whether that meant Ramos had been
convicted of “this exact same offense just eight months before this incident occurred;
right?” Ramos answered yes to both. Defense counsel did not object to the questioning.
       The second purported instance of misconduct occurred during closing argument,
when, after reminding the jury that Ramos testified how gang members back each other
up as part of their culture, the prosecutor then said, “[a]nd finally he was convicted of the
same offense just eight months before the incident in this case.” No objection was raised
to this comment.

2.     The Misconduct Claims Were Waived

       Because Ramos did not object to the two asserted instances of prosecutorial
misconduct, the issue is waived. (People v. Seumanu (2015) 61 Cal.4th 1293, 1328.)
Ramos contends that his trial lawyer’s failure to object amounted to ineffective assistance
of counsel, an issue we consider next.
                                              4
3.     Ramos Did Not Receive Ineffective Assistance of Counsel

       Claims of ineffective assistance of counsel entail deficient performance assessed
under an objective standard of reasonableness, and prejudice measured by a reasonable
probability of a more favorable outcome absent the deficient performance. (People v.
Coffman and Marlow (2004) 34 Cal.4th 1, 48.)3 The failure to make a meritless
objection does not constitute ineffective assistance of counsel. (People v. Cunningham
(2001) 25 Cal.4th 926, 1038.) We first conclude that Ramos did not receive ineffective
assistance of counsel because an objection that the prosecutor had committed misconduct
would have lacked merit.
       A prosecutor commits misconduct when he uses deceptive or reprehensible
methods to persuade the jury. When a claim of misconduct is based on the prosecutor’s
jury arguments, we determine whether there is a reasonable likelihood that the jury
improperly construed or applied the disputed remarks. (People v. Bryant, Smith And
Wheeler (2014) 60 Cal.4th 335, 427.)
       The prosecutor’s questions concerning the nature and timing of Ramos’s recent
conviction for assault with a gang benefit finding must be viewed in context. Over
defense objection, the trial court allowed evidence of that conviction for the sole purpose
of showing that the Playboys gang engaged in a pattern of criminal activity and that
Ramos committed the crime in order to benefit the gang. (§ 186.22, subds. (a) & (e).)
Despite this, the prosecution did not introduce evidence of Ramos’s conviction during its
case-in-chief. Instead, Ramos’s lawyer introduced it during his direct examination of

3      Ramos contends that we should apply the federal “harmless beyond a reasonable
doubt” standard because the prosecutor’s conduct violated his federal constitutional due
process rights. We decline this request for two reasons. First, a due process violation
requires a pervasive level of misconduct that infects the trial with such unfairness that
due process has been denied. (People v. Lopez (2008) 42 Cal.4th 960, 965.) We do not
see how such a pervasive taint arises from two isolated comments. Second, the issue was
mentioned as part of Ramos’s appellate argument on prejudice and was not supported by
analysis or citation to authority. We therefore deem the issue waived. (People v.
Carrillo (2008) 163 Cal.App.4th 1028, 1035.)
                                             5
Ramos, albeit in a highly sanitized manner. When the prosecutor brought out the
specifics of the conviction – that it occurred eight months earlier and was for assault with
a deadly weapon, with a gang benefit allegation, he did so as part of a series of questions
concerning the conduct and activities of the Playboys gang. Therefore the question was
arguably within the scope permitted by the trial court.
       We share Ramos’s concern that the prosecutor might have pushed things too far
when he summed up by asking, “So you were convicted of this exact same offense just
eight months before this incident occurred; right?” Although this might have merited an
objection in order to remind the jury of the proper use of the prior conviction evidence,
we do not believe the question was deceptive or reprehensible. In any event, as we
discuss below, the question did not prejudice Ramos.
       As for the prosecutor’s remarks during his closing argument, they too must be
viewed in context. During his opening argument, the prosecutor mentioned Ramos’s
prior conviction, along with offenses committed by other Playboys gang members, and
clarified that he did so in order to establish a pattern of activity by the Playboys gang.
During his closing argument, the prosecutor recounted Ramos’s testimony about the
Playboys’ past conduct, concluding, “[a]nd, finally, he was convicted of the same offense
just eight months before the incident in this case.” Although this final statement could be
viewed as another attempt to drive home the point that Ramos was likely guilty based on
his past conduct, the prosecutor had earlier told the jury that he raised the issue solely to
show a pattern of gang activity, and the jury was instructed to use the evidence for that
purpose only. Based on that, we conclude it was not reasonably likely that the jury was
misled by the comment.
       We alternatively hold that the complained of statements did not prejudice Ramos.
The jury was admonished to use Ramos’s prior conviction for the sole purpose of
determining whether the street gang benefit allegation were true and that it could not use
the evidence to conclude that Ramos was of bad character or had a disposition to commit
the crime. We presume that the jury followed this instruction and therefore conclude that


                                              6
Ramos was not prejudiced by the prosecutor’s question or closing argument. (People v.
Boyette (2002) 29 Cal.4th 381, 431.)


                                        DISPOSITION


      The judgment is affirmed.




                                                RUBIN, J.
WE CONCUR:



             BIGELOW, P. J.



             OHTA, J.*




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