Filed 3/30/16 P. v. Ragland CA4/2




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,

v.                                                                      E062592

JONATHAN DEPREE RAGLAND,                                                (Super.Ct.No. RIF1300069)

         Defendant and Appellant.                                       OPINION




         APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge.

Affirmed.

         Robert Booher, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Scott C.

Taylor, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
           A jury convicted defendant and appellant, Jonathan Ragland, of first degree

murder. (Pen. Code, § 187, subd. (a), count 1.) The jury also found true the allegation

that in committing count 1 defendant personally and intentionally discharged a firearm

causing great bodily injury or death to another person. (§ 12022.53, subd. (d).)1 The trial

court sentenced defendant to a term of 25 years to life in state prison on count 1 and a

consecutive term of 25 years to life on the enhancement, for a total sentence of 50 years

to life.

           On appeal, defendant challenges his conviction on three grounds. First, he

contends he received ineffective assistance of counsel because his attorney failed to

object when the prosecutor misstated the burden of proof in closing argument. Second,

he contends the trial court erred by failing to instruct the jury sua sponte that it must

determine whether a witness was an accomplice whose testimony required corroboration.

Third, he contends the cumulative effect of those two errors deprived him of due process.

Defendant also challenges his sentence on the ground that it constitutes cruel and unusual

punishment because he was only 20 years old at the time of the offense.

           We affirm the judgment and the sentence.

                                                I

                                 FACTUAL BACKGROUND

           Prosecutors charged defendant with shooting and killing Lamar Adams on

December 14, 2012. At trial, two civilian witnesses testified against defendant.


           1
                 Unlabeled statutory citations refer to the Penal Code.

                                                2
       The first witness, Teesha Butler, testified she went to a birthday party at a friend’s

apartment with Adams and several other people. She had just met Adams, but had

known defendant for five or six years—since ninth or 10th grade—and described him as

a friend. According to Butler, at the party an altercation broke out inside the apartment

between Adams and another person named Keishawn. After a few minutes, the

altercation moved outside and more people started arguing with Adams. She testified she

went outside, “everyone that was in the living room went outside,” and “some people

came out from the [back] room too.”

       Butler testified defendant approached Adams with a gun and fired three shots from

about six feet away. Butler followed defendant as he walked away and reported that

Monte Walker advised defendant to make sure Adams was dead. She reported that

defendant then approached Adams again and shot him two more times.2 Butler pushed

defendant and asked him what he was doing, and defendant responded by pointing the

gun at her. Butler left the scene of the crime without talking to the police, but spoke with

the police later.

       Adonis Harris, the second witness, also knew defendant from high school and

attended the birthday party on December 14, 2012. Harris left the party to buy beer.

When he returned to the apartment he saw a group of people arguing. He said he saw

“somebody walk in the party and say, you know, ‘Perris Locc,’ this, that, ‘fuck


       2
            In a pretrial interview, Butler told police that the defendant initially shot
Adams one time before returning and shooting him again.

                                              3
neighborhood,’” and “heard another guy that was arguing, saying, ‘I’m from the

neighborhood. Where are you from?’” Harris testified that he did not know the first

speaker and could not identify the second speaker. Harris said he went into a back room

of the apartment as the argument escalated and the people involved moved outside. After

about 10 minutes in the back room, Harris heard shots fired and ran outside, where he

found people scattering. Harris called a girlfriend and asked her to pick him up. Before

she arrived, defendant asked Harris for a ride and Harris agreed to give him one. Harris

testified he had not seen defendant at the party at any point before defendant asked for a

ride.

        Harris and defendant left the scene together, but the police stopped and searched

their vehicle. Harris said he told the police they were coming from a party, but did not

mention the shooting. A police officer testified Harris told law enforcement they were

coming from Harris’s grandmother’s home and heading for Los Angeles. After the

police released them, Harris’s girlfriend dropped Harris and defendant at a friend’s house,

where another girlfriend arrived to pick Harris up. Harris left defendant at the friend’s

house. Harris later signed an agreement with the prosecutor which gave him immunity

for his testimony.

        A gang enforcement officer with the police department testified Harris, defendant,

Monte Walker, and other people who attended the party were members of the same gang.

He testified that Adams was a member of a rival gang. He offered his opinion as a gang

expert that the words exchanged at the beginning of the altercation indicate it was a gang-

related conflict.

                                             4
       The jury convicted defendant of first degree murder for killing Adams. The jury

also found true the allegation that defendant personally and intentionally discharged a

firearm causing great bodily harm or death. The trial court sentenced defendant to a term

of 50 years to life in prison.

                                              II

                                      DISCUSSION

       A. Ineffective Assistance of Counsel

       Defendant contends his trial counsel provided ineffective assistance by failing to

object when the prosecutor argued the jury could find the People met their burden of

proof by presenting a reasonable theory of guilt or by determining that defendant’s theory

of innocence was not reasonable. We disagree with defendant’s characterization of the

prosecutor’s argument.

           1. The prosecution’s statement of the reasonable doubt standard

       At the end of closing argument, the prosecutor described the reasonable doubt

standard of proof in the following terms: “Finally, ladies and gentlemen, I’m going to

end talking a little bit about reasonable doubt, more specifically what reasonable doubt is

not. The definition of ‘reasonable doubt’ is that you have an abiding conviction that the

charge is true. [¶] So what does that not mean? Not beyond all possible doubt. This is

an extremely important point. The jury instructions tell you something to the effect of

‘Everything in life is open to some kind of possible doubt.’ Right? You can have a

doubt and still convict. That is just fine. As long as the doubt is not reasonable given the

evidence. [¶] Not 100 percent. This is also really important. This is something that we

                                              5
talked about in jury selection. Once you’re back there deliberating, if one of your fellow

jurors says, ‘Well, you know, I think he’s guilty. The evidence shows he’s guilty, but

I’m not a hundred percent,’ you are obligated to tell that person, ‘That’s not what the law

is. You’re not following the law. You’re holding [the prosecution] to a higher standard

than what the law requires.’ You don’t have to be a hundred percent. Nothing in life is a

hundred percent. [¶] . . . [¶] . . . Beyond a reasonable doubt means the exact same thing

in every case, be it shoplifting, DUI, all the way up to murder. Don’t hold me to a higher

standard just because of the charge. [¶] Ultimately is innocence reasonable? Is there any

explanation of all this evidence that makes any sense at all that leads to the defendant

being not guilty? No. Not a bit.”

       In rebuttal, the prosecutor argued: “As the judge explained to you this morning, I

get another chance to argue to you because I have the burden of proof. And so that

means that I have to prove the case. Right? The defense doesn’t have to do anything.

Defense doesn’t have to call any witnesses. Defense doesn’t have to cross-examine.

Defense doesn’t even have to argue. But [defense counsel] did [so]. So I get to comment

on that. . . . [Defense counsel] did not provide to you an alternate interpretation of the

facts. He suggested that Teesha isn’t credible. He suggested that the evidence means

certain things. But he didn’t actually tell you what the conclusion is. He didn’t give you

an explanation that accounts for all of this evidence. Right?” The prosecution closed by

noting: “Ultimately, ladies and gentlemen, the defense in their argument did not point the

finger at any other person. They didn’t say it was Monte. They didn’t say it was

Keishann [sic]. They didn’t say it was D-Loc. They did not provide to you any kind of

                                              6
alternate explanation. [¶] The reason for that is because the evidence is pretty

overwhelming. It was the defendant who did this. He pulled out a gun, he shot Lamar,

he killed him. That’s it. That’s the only reasonable explanation for this evidence.”

       Defense counsel did not object at trial to the prosecution’s presentation of the

reasonable doubt standard.

              2.     Analysis

       A prosecutor “commit[s] misconduct insofar as her statements could reasonably be

interpreted as suggesting to the jury [the prosecutor] did not have the burden of proving

every element of the crimes charged beyond a reasonable doubt.” (People v. Hill (1998)

17 Cal.4th 800, 831, overruled on another ground in Price v. Superior Court (2001) 25

Cal.4th 1046, 1069, fn. 13.) A prosecutor should not “claim[] there must be some

affirmative evidence demonstrating a reasonable doubt . . . for the jury may simply not be

persuaded by the prosecution’s evidence.” (People v. Hill, supra, at p. 831.) “When

attacking the prosecutor’s remarks to the jury, the defendant must show that, ‘[i]n the

context of the whole argument and the instructions’ [citation], 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. [Citation.]’ [Citations.]” (People v. Centeno (2014) 60 Cal.4th

659, 667 (Centeno).)

       Because defense counsel did not object at trial, to prevail on appeal, defendant

must establish the failure to object constituted ineffective assistance of counsel. (People

                                             7
v. Pope (1979) 23 Cal.3d 412, 425, overruling on other grounds recognized in People v.

Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, overruled on other grounds in People v.

Hill, supra, 17 Cal.4th at p. 823, fn. 1.) Defendant must show “‘(1) that counsel’s

representation fell below an objective standard of reasonableness; and (2) that there is a

reasonable probability that, but for counsel’s unprofessional errors, a determination more

favorable to defendant would have resulted. [Citations.] If the defendant makes an

insufficient showing on either one of these components, the ineffective assistance claim

fails.’” (People v. Holt (1997) 15 Cal.4th 619, 703.)

       Here, defense counsel did not perform in an objectively unreasonable fashion

because the prosecution’s discussion of the reasonable doubt standard was not

misleading. Defense counsel therefore had no reason to object. The trial court directed

the jury that the prosecution had the burden to prove all elements of the charges beyond a

reasonable doubt, and explained “[p]roof 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.” The prosecution correctly described the same standard to the jury, stating the

reasonable doubt standard is met when “you have an abiding conviction that the charge is

true.” The prosecution acknowledged it had the burden, telling the jury, “[a]s the judge

explained to you this morning, I get another chance to argue to you because I have the

burden of proof. And so that means that I have to prove the case. Right? The defense

doesn’t have to do anything. Defense doesn’t have to call any witnesses. Defense

doesn’t have to cross-examine. Defense doesn’t even have to argue.”

                                             8
       The prosecution also correctly told the jury the reasonable doubt standard of proof

did not require the People to overcome all possible doubt or doubt that is unreasonable.

(§ 1096 [“Reasonable doubt . . . is not a mere possible doubt”]; People v. Romero (2008)

44 Cal.4th 386, 416 [approving prosecutor’s argument that jury must “‘decide what is

reasonable to believe versus unreasonable to believe’ and to ‘accept the reasonable and

reject the unreasonable’”].) The prosecution explained that proving guilt beyond a

reasonable doubt does not mean proving guilt “beyond all possible doubt” and that “[t]he

jury instructions tell you something to the effect of ‘Everything in life is open to some

kind of possible doubt.’ Right? You can have a doubt and still convict. That is just fine.

As long as the doubt is not reasonable given the evidence. [¶] Not 100 percent.” Again,

this is a correct statement of the burden of proof.

       Defendant contends the prosecution crossed the line and suggested a reasonable

account of the evidence would satisfy the prosecutor’s burden of proof by asking,

“Ultimately is innocence reasonable? Is there any explanation of all this evidence that

makes any sense at all that leads to the defendant being not guilty?” According to

defendant, this statement of the law is equivalent to the improper argument by the

prosecutor in Centeno, who asked the jury, “Is it reasonable to believe that a shy, scared

child who can’t even name the body parts made up an embarrassing, humiliating sexual

abuse, came and testified to this in a room full of strangers or the defendant abused Jane

Doe. That is what is reasonable, that he abused her.” (Centeno, supra, 60 Cal.4th at p.

666.) We disagree the arguments are equivalent. The prosecutor in Centeno asked the

jury to convict because it was more reasonable to conclude from the evidence that

                                              9
defendant was guilty, which erroneously suggests “a ‘reasonable’ account of the evidence

satisfies the prosecutor’s burden of proof.” (Id. at p. 662.) By contrast, the prosecutor in

this case correctly accepted the burden of proof, but explained the jury should not vote to

acquit based on defense counsel’s explanations of the evidence unless those explanations

were reasonable. That is, the prosecutor correctly told the jury it should not acquit based

on unreasonable doubt. (See ibid.)

       Defendant also contends that by pointing out the defense “didn’t give you an

explanation that accounts for all of [the] evidence,” the prosecutor in effect “argued that

the jury could not acquit unless appellant presented a reasonable version of the events

that convinced the jury that he was innocent.” We disagree. The prosecution

acknowledged it had the burden of proof, and specifically explained the “defense doesn’t

have to do anything. Defense doesn’t have to call any witnesses. Defense doesn’t have

to cross-examine. Defense doesn’t even have to argue.” The prosecution also explained

that, because defense counsel did argue the evidence, “I get to comment on that. . . .

[Defense counsel] did not provide to you an alternate interpretation of the facts. He

suggested that Teesha isn’t credible. He suggested that the evidence means certain

things. But he didn’t actually tell you what the conclusion is. He didn’t give you an

explanation that accounts for all of this evidence. Right?” These comments cannot

reasonably be interpreted to mean the defendant could not prevail without presenting a

reasonable explanation of the evidence. On the contrary, they acknowledge the defense

could prevail if the jury discounted some or all of the testimony against defendant. The

comments by the prosecution simply point out that, if the jury credited the evidence, the

                                             10
defense did not put forward a reasonable explanation to undermine the prosecution’s case

for guilt. (See Centeno, supra, 60 Cal.4th at p. 673 [“[T]he prosecution can surely point

out that interpretations proffered by the defense are neither reasonable nor credible.

Nevertheless, even if the jury rejects the defense evidence as unreasonable or

unbelievable, that conclusion does not relieve or mitigate the prosecutorial burden”].)

We conclude there is no reasonable likelihood the prosecutor’s comments misled the jury

about the standard of proof. As a result, defense counsel’s performance was not

deficient.3

       Defendant contends People v. Ellison (2011) 196 Cal.App.4th 1342 and People v.

Lloyd (2015) 236 Cal.App.4th 49 require a different result. We disagree. In Ellison, this

court determined the prosecutor crossed the line by arguing that “the jury instructions tell

you that if there’s two reasonable interpretations of the evidence, one points to guilt, one

points to innocence. You have to vote not guilty because that’s fair, because that means

it’s reasonable that the defendant is innocent,” and that “[b]eyond a reasonable doubt is

what the evidence that you’re given [sic]. Is it reasonable that the defendant’s innocent.”

(People v. Ellison, supra, at pp. 1351-1352.) The error in Ellison was stating that the

defense was required to present evidence or argument to establish it would be reasonable

to conclude the defendant was innocent. As we discussed ante, the prosecutor in this


       3
              Defendant also contends that “[b]y insinuating that appellant had any duty
to provide an alternative explanation for the events, the prosecutor’s argument also
violated appellant’s federal constitutional right to remain silent.” We disagree because
the prosecutor told the jury the defendant did not have a duty to present an alternative
explanation of the evidence.

                                             11
case did not make that argument. Instead, he argued defendant could not defeat the

prosecution case by offering interpretations of the evidence to induce unreasonable doubt.

       In Lloyd, the Court of Appeal concluded the prosecution misstated the law when it

equated “a not guilty verdict based on self-defense . . . as meaning the defendant must

establish the defense to the point the jury considers his actions ‘absolutely acceptable’”

and stating “not guilty means the defendant is innocent.” (People v. Lloyd, supra, 236

Cal.App.4th at p. 63.) The prosecution in this case did not make those errors, but

accepted the burden of proof, acknowledged the defense need not present any evidence or

argument, but cautioned the jury not to acquit based on unreasonable interpretations of

the evidence. We therefore see no basis for concluding it likely the jury was misled or

that counsel performed deficiently.

       B. Failure to Give Accomplice Instructions

       Defendant contends the trial court committed prejudicial error by failing to

instruct the jury sua sponte “to determine whether Harris was an accomplice, and if so, to

treat his statements with caution and to credit his statements implicating appellant in the

shooting only if they were corroborated.” We disagree.

       Defense counsel withdrew its request for a jury instruction on the need to

corroborate the testimony of accomplices. (CALCRIM No. 335.) The trial court did not

independently direct the jury on deciding whether Harris was an accomplice or receiving

accomplice testimony. We review that omission de novo. (People v. Guiuan (1998) 18

Cal.4th 558, 569.) “Whether or not to give any particular instruction in any particular

case entails the resolution of a mixed question of law and fact that . . . is however

                                             12
predominantly legal. As such, it should be examined without deference.” (People v.

Waidla (2000) 22 Cal.4th 690, 733.)

       “‘A conviction cannot be had upon the testimony of an accomplice unless it be

corroborated by such other evidence as shall tend to connect the defendant with the

commission of the offense; and the corroboration is not sufficient if it merely shows the

commission of the offense or the circumstances thereof. [¶] An accomplice is hereby

defined as one who is liable to prosecution for the identical offense charged against the

defendant on trial in the cause in which the testimony of the accomplice is given.’”

(People v. Tobias (2001) 25 Cal.4th 327, 331 (Tobias), quoting § 1111.) “‘In order to be

an accomplice, the witness must be chargeable with the crime as a principal [citation] and

not merely as an accessory after the fact [citations]. [Citation.]’ [Citation.] Principals

include those who ‘directly commit the act constituting the offense’ as well as those who

‘aid and abet in its commission. . . .’” (People v. Felton (2004) 122 Cal.App.4th 260,

268.) “An aider and abettor . . . must ‘act with knowledge of the criminal purpose of the

perpetrator and with an intent or purpose either of committing, or of encouraging or

facilitating commission of, the offense.’ [Citation.]” (People v. Mendoza (1998) 18

Cal.4th 1114, 1123.) “‘[W]hen there is sufficient evidence that a witness is an

accomplice, the trial court is required on its own motion to instruct the jury on the

principles governing the law of accomplices,’ including the need for corroboration.

[Citations.]” (Tobias, supra, at p. 331.)

       In this case, the accomplice instructions were not required because there was no

substantial evidence Harris knew of defendant’s intent to commit the murder. (People v.

                                             13
Boyer (2006) 38 Cal.4th 412, 466 [“The court need give such [accomplice] instructions

only where there is substantial evidence that the witness was an accomplice”].) Harris

testified he arrived at the party, left to buy beer, and returned to find the victim and

another person involved in an altercation in the apartment. He said he did not know or

could not identify the two people involved in the argument. He testified that he went to a

back room in the apartment with friends as the altercation moved outside. He was not

present for the shooting and did not see defendant involved in the altercation before or

after it moved outside. Thus, the only evidence linking Harris to defendant’s crime was

testimony that he belonged to the same gang, was present at the same party, agreed to

give defendant a ride after the shooting, and did not disclose to the police when stopped

that they had been present at the scene of the shooting.4 We conclude that evidence is too

speculative to be a basis for concluding Harris perpetrated, planned, encouraged, or

instigated the murder. “Substantial evidence is ‘evidence sufficient to “deserve

consideration by the jury,” not “whenever any evidence is presented, no matter how

weak.”’ [Citation.]” (People v. Lewis (2001) 26 Cal.4th 334, 369.) Consequently, the

court did not err in failing to give accomplice instructions.

       C. Cumulative Effect of Errors

       Defendant contends “[t]he prejudice flowing from the prosecutor’s repeated

misdescription of the burden of proof only served to increase the likelihood that the error
       4
              Defendant points out Butler testified some of the people in the back room
went outside and observed the shooting. However, Butler did not identify Harris as one
of those people and Harris testified he went into the back room, not outside, when the
people involved in the altercation were leaving the apartment.

                                              14
in failing to instruct on accomplice testimony prejudiced appellant.” He contends the

cumulative effect of these errors violated his due process rights by rendering his trial

fundamentally unfair. Having found no errors, there could be no cumulative effect. (See

People v. Kipp (2001) 26 Cal.4th 1100, 1132.)

       D. Cruel and Unusual Punishment

       Defendant contends his sentence of 50 years to life in prison is a grossly

disproportionate punishment. He bases his argument on United States Supreme Court

decisions that restrict, on Eighth Amendment grounds, the imposition of “mandatory life

without parole for those under the age of 18 at the time of their crimes.” (Miller v.

Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455, 2460]; see also Graham v. Florida (2010)

560 U.S. 48; Roper v. Simmons (2005) 543 U.S. 551.)

       Defendant acknowledges he was over 20 years old at the time of his offense and

therefore not a juvenile, but argues the rationale of Roper, Graham, and Miller applies

equally well to defendants who are 20 years old.5 “‘Drawing the line at 18 years of age is

subject . . . to the objections always raised against categorical rules,’” nevertheless, that

‘“is the point where society draws the line for many purposes between childhood and

adulthood.’ [Citations.] . . . We respect the line our society has drawn and which the

United States Supreme Court has relied on for sentencing purposes, and conclude

[defendant’s] sentence is not cruel and/or unusual.” (People v. Abundio (2013) 221


        5      Defendant acknowledges the Court of Appeal has rejected his argument and
raises the issue to challenge the current state of the law and preserve the issue for federal
review.

                                              15
Cal.App.4th 1211, 1220-1221, as mod. on rehg. den. Jan. 3, 2014.) We conclude the

sentence must be affirmed.

                                         III

                                   DISPOSITION

      We affirm the judgment and the sentence.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                           SLOUGH
                                                                                    J.

We concur:


RAMIREZ
                      P. J.


CODRINGTON
                         J.




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