Filed 5/29/15 P. v. Dietz CA1/5

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A140421
v.
RYAN MITCHELL DIETZ,                                                 (Sonoma County
                                                                     Super. Ct. No. SCR604500)
         Defendant and Appellant.


         Jack Romero was fatally shot in downtown Santa Rosa while out with Garika
Rush, with whom he had been having an affair. Rush’s live-in boyfriend, appellant Ryan
Dietz, was sentenced to prison for a term of 50 years to life after a jury convicted him of
first degree murder and determined he had personally used and intentionally discharged a
firearm causing death. (Pen. Code, §§ 187, subd. (a), 189, 12022.53, subd. (d).)1
Appellant contends the judgment must be reversed because (1) the evidence was
insufficient to support a conviction of first degree murder under a theory of premeditation
and deliberation or lying in wait; (2) the trial court should have allowed the defense to
introduce evidence of Romero’s gang affiliation and Rush’s association with violent
individuals; and (3) the prosecutor committed misconduct during closing argument by


         1
         Appellant was also found to have suffered a prior serious or violent felony
conviction within the meaning of the Three Strikes law, but that allegation was stricken
by the trial court in the interests of justice and is not an issue on appeal. (Pen. Code,
§ 1170.12; People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)


                                                             1
analogizing the burden of proof in a circumstantial evidence case to a pointillist painting
and by urging the jury to consider the evidence as a whole. We affirm.
                                     BACKGROUND
       Rush was involved in a long-term tumultuous relationship with appellant, the
father of three of her four children. Appellant owned a silver 2004 Toyota Sienna
minivan and Rush owned a Chevy Avalanche truck, and both of them had a key to each
vehicle. In 2009 or early 2010, Romero became their next-door neighbor. One of Rush’s
daughters befriended Romero’s daughter, and Rush and Romero began a sexual
relationship.
       Rush told appellant about the affair and they argued about it daily. On one
occasion, Rush broke up an altercation between appellant and Romero outside of their
apartment. On another, appellant screamed at Rush and banged on Romero’s door after
he caught Rush surreptitiously leaving Romero’s apartment at 4:00 in the morning. In
May 2010, Rush moved to appellant’s sister’s house for six weeks, but continued to see
Romero. Rush and appellant reconciled and they moved to another apartment together,
though Rush continued to see Romero. Several months after the move, Rush decided to
end her affair with Romero and focus on her relationship with appellant. For the next six
months or so, Romero texted Rush about once a month but they did not see each other.
Rush told appellant she was no longer seeing Romero, but they continued to argue about
him. Rush’s relationship with appellant was “up and down” during that time.
       Appellant saw text messages from Romero to Rush on Rush’s cell phone, which
Rush sometimes left lying around in the apartment. Appellant was very upset and angry
at Rush. Knowing appellant was checking her messages, Rush began using her oldest
daughter’s cell phone to communicate with Romero. In May or June of 2011, Rush got
into a heated argument with appellant after appellant saw a missed call or text message
from Romero. Appellant told Rush to stop seeing Romero or she “was going to end up
making him [appellant] do something stupid,” and said he had dreams about murdering
Romero. Appellant sent Rush a number of text messages during this period, some
expressing his love for her, some expressing his anger toward her (in very colorful


                                             2
language), and some expressing frustration (also in very colorful language) that she was
not at home and he could not find her.
       On June 25, 2011, Rush and appellant returned home from a party at a winery and
appellant fell asleep. Rush texted a few friends, including Romero, about going out that
night. She sent a text to her friend Wendy Hernandez asking her to be her alibi so she
could go out with Romero. Rush picked up Romero in the Toyota Sienna and they went
dancing. The next day, Rush saw appellant looking at her phone, but he did not say
anything.
       On June 28, 2011, Rush and Romero had plans to go to the movies together, but
Rush’s sister went into labor and Rush drove her to the hospital. Rush returned home to
take a shower and gather some things before returning to the hospital, and appellant
became angry with her when she refused to let him join her in the shower. When Rush
asked appellant to hand her a razor, intending to shave her legs (something she did not do
regularly), appellant asked why she needed it. Rush drove the Chevy Avalanche back to
the hospital to see her sister while appellant took the children to a family party in the
Toyota Sienna. She stayed at the hospital until 9:30 p.m., but falsely told appellant on the
phone that she would be there for a few more hours, as this would give her the
opportunity to spend time with Romero.
       At about 10:00 p.m., Rush picked up Romero at his home and they drove to the
Third Street Aleworks, a restaurant in downtown Santa Rosa. On Romero’s suggestion,
Rush parked around the corner on Second Street and D Street rather than on the street in
front of the restaurant. They walked down a pedestrian alley that passed by a parking
garage behind the Aleworks to the back door of the restaurant, where they sat at the bar
and shared pitchers of beer until midnight when the restaurant closed.
       Rush and Romero chatted with a few people outside the front door after they left
the restaurant, and at some point Rush turned toward Romero and saw he was gone. As
she continued to talk to a couple she had met inside the restaurant, Rush heard a series of
loud pops, which she thought were fireworks or firecrackers. Although she did not know



                                              3
it at the time, Romero had been fatally shot in the parking garage near the alleyway they
had traversed to get to the Aleworks.
       Billy With, Alexandra Prada and Adam Beltz were changing a flat tire on With’s
car nearby when they heard gunshots. With recalled five or six shots being fired and,
after a pause, six or seven more shots. Prada was curious and ran toward the shots, where
she saw a man leaving the parking garage and walk to a silver minivan. With followed
Prada and also saw the man get into a silver minivan. Beltz saw the man holster a
weapon and get into what he later described to police as a silver Honda Odyssey minivan.
Prada and With saw someone lying on the ground in the parking garage and Prada called
911.
       Rush assumed Romero had gone back to her truck or had gone around the corner
to urinate.2 The couple she was speaking with accompanied her through the pedestrian
alley toward the place she had parked. The man directed Rush’s attention to a body on
the ground, and they walked back to the Aleworks and asked the restaurant staff to call
the police. Rush tried to call Romero on her phone but he did not answer.
       Officers from the Santa Rosa Police Department arrived at the scene and one of
them approached Rush. She said she was looking for her friend and described Romero.
The officer led her to an area near the alley marked with yellow tape and shined a
flashlight on a body from a distance of about 25 feet. Rush recognized the body as
Romero but did not tell the officer because she was in shock. She was questioned by
police officers but was not cooperative and did not want to be involved.
       The police released Rush and she returned home at about 8:00 a.m. Appellant was
not there, but Rush had a number of missed calls and texts from him from the previous
night. When she called appellant, he was angry that he had to leave for his job at an
electrical company without his tools, which were in the Avalanche. Appellant tried to
call Rush a number of times that morning, but she did not answer her phone and did not


       2
        Romero’s bladder contained about a cup of urine at the time of his death, an
amount that could have caused him to feel the need to urinate.


                                            4
speak to him again until 11:00 a.m., when he called her daughter’s cell phone and asked
to speak with Rush. Appellant was nicer than he had been the last time they spoke and
asked Rush to do him a favor. He instructed her to go into the garage and find a large
box with two shoe boxes inside, and to retrieve a bag with a box inside from the driver’s
side wheel well compartment of the Avalanche. She was to take the boxes and dispose of
them in different trash Dumpsters. When Rush asked appellant why, he said he would
tell her when he got home.
       Rush did what appellant asked, noticing that the box inside the bag was white with
a “W” logo. She threw this box into a Dumpster in the back of one shopping center, and
then drove to a second shopping center where she discarded the two shoe boxes in two
different Dumpsters. Before doing so, she opened the boxes and saw nails, metal trinkets
and bullets inside one of them. The other shoe box contained a number of small black
boxes inside, but Rush did not open them. After disposing of the boxes, Rush went to the
hospital to visit her sister and returned home, where she looked under her bed and saw
that the two or three rifles appellant usually kept there were missing.
       Police officers had been surveilling Rush and had retrieved the trash bag she
placed inside the Dumpster at the first shopping center. It contained a box of Winchester
Smith & Wesson .40-caliber ammunition, including 24 live, unfired rounds and 26 empty
slots. The officers also retrieved the shoe boxes placed in the Dumpsters at the other
shopping center, one of which contained several boxes of Wolf .223-caliber ammunition,
bullets typically used in high-powered weapons like an M16 rifle. Police officers
arrested Rush at her home and, having made the connection between appellant and Rush,
arrested appellant at his place of employment. During a search of their home, police
found a gun cleaning kit, ammunition for a shotgun and ammunition for a rifle.
       Billy With later identified appellant in a photo lineup as the man he had seen
walking to the van after he heard the shots fired on the night of the killing, but he did not
identify appellant in a live lineup. Alexandra Prada did not initially identify appellant in
a photo lineup, but contacted a district attorney investigator shortly before the trial in the
case and identified appellant in a live lineup as the man in the minivan. She explained


                                               5
she did not identify him at first because she was afraid, but had decided to do the right
thing after her grandparents died.
       Rush’s and appellant’s cell phones were examined by a digital forensics expert
who extracted information from the phones and determined that Google Latitude, a
location-sharing application, had been installed on both of them. Latitude allows users
who are linked (such as appellant and Rush) to track the location of each other’s phone.
The application was installed on appellant’s phone on May 6, 2011, and on Rush’s phone
on June 16, 2011. On the night of the shooting, Rush’s phone transmitted that it was in
the vicinity of Third Street and D Street in Santa Rosa. The Latitude files on appellant’s
phone, which would have allowed him to track Rush’s whereabouts the previous night,
had been deleted on the morning after the shooting.
       Security videos taken on the night of the shooting were retrieved from a bank and
government building in downtown Santa Rosa. The videos showed a minivan turning on
D Street near the scene of the shooting at about 11:25 p.m. A detective who later drove
appellant’s Toyota minivan past the same cameras during a nighttime reenactment
compared the videos and still photos from the night of the shooting with the videos and
still photos from the night of the reenactment and concluded the van captured on the
night of the shooting looked the same as appellant’s van.
       The forensic evidence at the scene included 11 casings fired from a single
semiautomatic weapon. The distribution of spent cartridges suggested the shooter was
moving while firing the shots. Cartridge cases from the crime scene were compared to
the ammunition recovered from the Dumpsters, and one box of ammunition was found to
have been made by Smith & Wesson, the same manufacturer as the spent cartridges. A
ballistics expert examined the “bunter marks” on the cartridges of the casings recovered
from the scene (the marks created by a bullet manufacturing tool that produces the head
stamp on cartridge cases). The bunter marks on some of the cartridges recovered from
the scene were similar to those on the ammunition in the box found in the Dumpster,
suggesting they had been manufactured and stamped by the same tool.



                                             6
       The coroner who examined Romero’s body found a total of eleven gunshot
wounds: two in his head, eight in his torso, and one in his upper arm. One of the bullets,
which had lodged in Romero’s neck, was fired from a distance of one to three feet away.
Seven of the shots had entered the back side of Romero’s body, with exit wounds on the
front side. A wound in Romero’s buttock was at a sharply downward angle, suggesting
the shooter was positioned above Romero when it was fired.
       Later, Rush pleaded no contest to being an accessory after the fact with an
agreement she would receive probation if she gave truthful testimony against appellant at
his trial. (Pen. Code, § 32.)
                                      DISCUSSION

       A. Sufficiency of the Evidence of First Degree Murder
       The jury was instructed on two theories of first degree murder: (1) willful,
deliberate and premeditated murder; and (2) murder by lying in wait. (Pen. Code, § 189.)
Appellant contends the evidence was insufficient to support a conviction under either
theory. He also argues that the lack of evidence of lying in wait renders the instructions
under that theory prejudicial, even if the evidence is deemed sufficient to support a
finding of premeditation and deliberation. We disagree.
       “In assessing the sufficiency of the evidence supporting a jury’s finding of
premeditated and deliberate murder, a reviewing court considers the entire record in the
light most favorable to the judgment below to determine whether it contains substantial
evidence—that is, evidence which is reasonable, credible, and of solid value—from
which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.
[Citations.] When the circumstances reasonably justify the jury’s findings, a reviewing
court’s opinion that the circumstances might also be reasonably reconciled with contrary
findings does not warrant reversal of the judgment. [Citations.]” (People v. Mendoza
(2011) 52 Cal.4th 1056, 1068-1069 (Mendoza.)
       “ ‘ “A verdict of deliberate and premeditated first degree murder requires more
than a showing of intent to kill. [Citation.] ‘Deliberation’ refers to careful weighing of



                                             7
considerations in forming a course of action; ‘premeditation’ means thought over in
advance. [Citations.]” ’ ” (Mendoza, supra, 52 Cal.4th at p. 1069.) “An intentional
killing is premeditated and deliberate if it occurred as the result of preexisting thought
and reflection rather than unconsidered or rash impulse. [Citations.] However, the
requisite reflection need not span a specific or extended period of time.” (People v.
Stitely (2005) 35 Cal.4th 514, 543.) “ ‘ “ ‘Thoughts may follow each other with great
rapidity and cold, calculated judgment may be arrived at quickly.’ ” ’ ” (Mendoza, at
p. 1069.)
       In People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson), the state Supreme
Court identified three categories of evidence relevant to the presence of premeditation
and deliberation: (1) planning activity, (2) motive, and (3) the manner of the killing.
(Mendoza, supra, 52 Cal.4th at p. 1069.) Though these so-called Anderson factors are
not exhaustive or exclusive of other considerations (ibid.), their application to the present
case supports a finding the murder was premeditated.
       With respect to planning, the evidence showed appellant and Rush had argued
repeatedly about her relationship with Romero and during one such argument, appellant
told her to stop seeing Romero or she “was going to end up making him do something
stupid.” Appellant had also told Rush he had dreams about murdering Romero. The jury
could reasonably conclude that on the night of the shooting, appellant tracked Rush’s
whereabouts using the Google Latitude application installed on both their phones. Given
the ongoing nature of Rush’s relationship with Romero, appellant would have at least
suspected he would find them together, and came to the scene prepared with a loaded
semiautomatic pistol. The surveillance video footage from a nearby bank and
government building support the inference that appellant had driven his van to the area at
least 30 minutes before the shooting, giving him time to deliberate and reflect before
confronting Romero. (See People v. Koontz (2002) 27 Cal.4th 1041, 1082 [defendant’s
act of arming himself and following victim was evidence of planning]; People v. Miller
(1990) 50 Cal.3d 954, 993 [taking weapon to scene was indication of planning]; People v.
Rodriguez (1986) 42 Cal.3d 730, 757 [prior threats were proof of planning].)


                                              8
       The evidence of motive, the second Anderson factor, was equally strong. Romero
was having an ongoing sexual relationship with Rush, appellant’s live-in girlfriend and
the mother of his children. Appellant and Rush frequently argued about this situation,
and it upset appellant to the point he had thoughts of killing Romero. (Anderson, supra,
70 Cal.2d at p. 29; People v. Nazeri (2010) 187 Cal.App.4th 1101, 1117 [recognizing
sexual jealousy as a motive supporting finding of premeditation and deliberation];
People v. Martinez (1987) 193 Cal.App.3d 364, 372 [evidence the defendant was
motivated by jealousy at time of killing supported finding of premeditation].)
       Finally, the manner of the killing supports a determination appellant acted with
premeditation and deliberation. Appellant shot Romero eleven times, at least six times in
the back. A gunshot wound to the neck was fired at close range (one to three feet away)
and the angle of one wound suggested appellant was standing over Romero when that
shot was fired. Billy With, a witness unrelated to either appellant or the victim, heard a
series of gunshots, a pause, and then several more shots, suggesting appellant had an
opportunity to reflect even as the shooting was in progress. (See People v. Mayfield
(1997) 14 Cal.4th 668, 768 [shot to victim’s face “entirely consistent with a preconceived
design to take his victim’s life”]; People v. Francisco (1994) 22 Cal.App.4th 1180, 1192
[manner of killing—firing five or six shots at close range—supported inference “the
shooter was intent on inflicting death”].)
       Because we conclude the evidence was sufficient to support a conviction of first
degree premeditated murder, any error in giving instructions on a lying-in-wait theory
would be harmless “absent an affirmative indication in the record that the verdict actually
did rest” on the lying-in-wait theory. (People v. Guiton (1993) 4 Cal.4th 1116, 1129
[where case given to jury on different factual theories, one of which is not supported by
the evidence, court presumes the jurors rejected that theory and based the verdict on the
factually supported theory].) The record does not affirmatively indicate the jury relied on
lying in wait as a basis for first degree murder, and appellant is not entitled to reversal
even if we assume the evidence did not support a lying-in-wait theory as he alleges.



                                              9
       In any event, the evidence presented was sufficient to support a conviction under a
lying-in-wait theory. “Lying-in-wait murder consists of three elements: ‘ “ ‘(1) a
concealment of purpose, (2) a substantial period of watching and waiting for an
opportune time to act, and (3) immediately thereafter, a surprise attack on an
unsuspecting victim from a position of advantage . . . .’ [Citations.]” ’ ” (People v.
Russell (2010) 50 Cal.4th 1228, 1244, fn. omitted.) Lying in wait is “ ‘ “the functional
equivalent of proof of premeditation, deliberation and intent to kill.” ’ ” (Id. at p. 1257.)
“The purpose of the watching and waiting element is to distinguish those cases in which a
defendant acts insidiously from those in which he acts out of rash impulse.” (People v.
Stevens (2007) 41 Cal.4th 182, 202.)
       Substantial evidence supports the conclusion appellant concealed his purpose from
Romero by driving to a location where he would likely find Romero, armed with a loaded
handgun, and parking his van and waiting without making his presence known. The
evidence also showed appellant engaged in a substantial period of watching and waiting,
having arrived at the scene approximately 30 minutes before the shooting. (See People v.
Moon (2005) 37 Cal.4th 1, 23 [90 seconds of waiting sufficient to show the defendant lay
in wait].) A surprise attack from a position of advantage can be readily inferred from the
evidence presented.

       B. Exclusion of the Evidence Regarding Romero’s Gang Ties and Rush’s
          Association with Dangerous Individuals

       Appellant argues the trial court violated his due process right to present a defense
when it excluded evidence he claims would have tended to show he did not act with
premeditation and deliberation. We disagree.
       This issue arises from a defense request to admit evidence Romero was associated
with a gang and routinely carried a gun, on the ground such evidence was relevant to
theories of self-defense and third party culpability. The defense also sought to admit
evidence of a 2006 incident in which appellant’s best friend, John Purkey, had confronted
Rush while she was in the company of two other men and told her he was going to tell


                                              10
appellant, prompting the men who were with Rush to stab Purkey in his leg and thumb.
Defense counsel argued evidence of this incident tended to show appellant knew Rush
kept company with violent people, and suggested he was carrying a gun for self-
protection when he went looking for her on the night of the shooting.
       The court ruled the gang evidence was inadmissible under Evidence Code section
352, because it was highly prejudicial and not particularly probative considering that
Romero’s purported gang ties were in 2007 or 2008, three years before the shooting in
this case. The court excluded evidence of the 2006 Purkey incident on the same basis,
noting it was irrelevant to the issues in this case, did not involve Romero, and was remote
in time. The court indicated Rush would be allowed to testify that she had seen Romero
with a gun.
       Only relevant evidence is admissible at trial. (Evid. Code, § 350.) “Relevant
evidence” is statutorily defined as evidence “having any tendency in reason to prove or
disprove a disputed fact that is of consequence to the determination of the action.” (Evid.
Code, § 210.) Under Evidence Code section 352, relevant evidence may be excluded
when “its probative value is substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.” We review a trial court’s
ruling regarding relevance and admissibility under Evidence Code section 352 for abuse
of discretion. (People v. Merriman (2014) 60 Cal.4th 1, 74.) Under this deferential
standard, we will not reverse “unless it is shown ‘ “the trial court exercised its discretion
in an arbitrary, capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice.” [Citation.]’ ” (Ibid.)
       The trial court did not abuse its discretion in excluding evidence Romero had
associated with a gang several years prior to the shooting. Romero’s possible gang
affiliation was not relevant to show appellant was carrying the gun to protect himself
when there was no admissible evidence appellant was aware of this affiliation. (See
People v. Cash (2002) 28 Cal.4th 703, 726-727 [victim’s debt collection practices not
relevant to show defendant’s state of mind unless defendant knew of those practices].)


                                              11
And, to the extent the defense wanted to use the gang evidence to show Romero might
have been murdered by a rival gang member, there was no showing of third party
culpability sufficient to render the evidence admissible. The law “does ‘ “not require that
any evidence, however remote, must be admitted to show a third party’s possible
culpability . . . . [E]vidence of mere motive or opportunity to commit the crime in
another person, without more, will not suffice to raise a reasonable doubt about a
defendant’s guilt: there must be direct or circumstantial evidence linking the third person
to the actual perpetration of the crime.” [Citation.]’ ” (People v. Panah (2005) 35
Cal.4th 395, 481.)
       Nor did the trial court abuse its discretion when it excluded evidence of the Purkey
incident in 2006. Though appellant argues this evidence would have shown he believed
that anyone who was with Rush was likely to be armed and dangerous, and thus
explained his possession of a gun on the night of the shooting, it does not suggest he
acted in self-defense with respect to Romero, who had nothing to do with the prior
incident.
       Even if we were to assume the court should have allowed the evidence described
above, its exclusion does not require reversal. In general, the application of the ordinary
rules of state evidence do not infringe upon a defendant’s federal constitutional right to
present a defense and will be reviewed under the standard for state law error announced
in People v. Watson (1956) 46 Cal.2d 818, 836, which asks whether it is reasonably
probable the jury would have reached a result more favorable to the defense if it had
heard the excluded evidence. (People v. Cunningham (2001) 25 Cal.4th 926, 999.) The
proffered evidence of Romero’s gang ties and the Purkey incident were only minimally
probative and, while they arguably supplied a reason for appellant’s decision to arm
himself when he went to look for Rush (and Romero), they do not explain why appellant
decided to use that gun to shoot Romero 11 times and do not supply a reasonable basis
for concluding someone other than appellant was the shooter.
       Moreover, the jury did not have an unrealistic impression of Romero as a
completely peaceful and law-abiding individual. Defense counsel elicited testimony


                                             12
from Rush that Romero had been involved in illegal drug activity, that he kept a handgun
under his pillow, and that he often carried a gun with him when they went out. Police
officers testified that a loaded .45-caliber semiautomatic handgun was discovered under
Romero’s pillow in a search of his home the evening after the shooting. This gun and
another Glock handgun were registered to Romero. It is not reasonably probable that
additional evidence about Romero’s prior gang ties or the Purkey incident would have
changed the result of the trial.

       C. Prosecutorial Misconduct
       Appellant contends the prosecutor committed misconduct during closing argument
by comparing the burden of proof in a case dependent on circumstantial evidence to a
pointillist painting and pieces of a puzzle. He claims the argument was misleading
because it understated the burden of proof beyond a reasonable doubt. We disagree.

       1. Closing Argument and Instructions on Reasonable Doubt
       During the prosecutor’s rebuttal argument, he projected slides from a pointillist
painting by the artist Georges Seurat and made the following comments over defense
objection: “Post-impressionist painter, George[s] Seurat, painted with a type of art called
pointillism. And he would take varying colors and place dots on his paintings, to draw a
picture. And there comes a point as in Seurat’s paintings that you have to get up from
your chair and stand back and take a look at the big picture. The totality of the
circumstances in this case. There’s a lot of evidence in this case. There are a lot of
pieces to the puzzle. And sometimes you have to stand back to get a good view to
consider it all. And that’s what Seurat did. That’s what you have to do. [¶] Common
sense, ladies and gentlemen. If it doesn’t sound right, in the general scheme of things,
considering the totality of the circumstances, if it doesn’t fit, that puzzle piece doesn’t fit,
if it doesn’t make sense to you, if it’s not, if it doesn’t sound reasonable to you, then it’s
not reasonable. But if it sounds appropriate, if the pieces of the puzzle fit, if it makes
sense, it is reasonable. To adopt the position that [appellant] did not kill Jack Romero




                                               13
would be unreasonable, given the fact that all the evidence points to [appellant]. Every
bit of it.”
        The jury was instructed with CALCRIM No. 220, regarding the presumption of
innocence and the standard of proof beyond a reasonable doubt, which provided in
relevant part: “A defendant in a criminal case is presumed to be innocent. This
presumption requires that the People prove a defendant guilty beyond a reasonable doubt.
Whenever I tell you the People must prove something, I mean they must prove it beyond
a reasonable doubt. [¶] 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. [¶] In
deciding whether the People have proved their case beyond a reasonable doubt, you must
impartially compare and consider all the evidence that was received throughout the entire
trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is
entitled to an acquittal and you must find him not guilty.”
        The court also instructed the jury with CALCRIM No. 223, defining direct and
circumstantial evidence, and CALCRIM No. 224, regarding the sufficiency of
circumstantial evidence in general: “Before you may rely on circumstantial evidence to
conclude that a fact necessary to find the defendant guilty has been proved, you must be
convinced that the People have proved each fact essential to that conclusion beyond a
reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the
defendant guilty, you must be convinced that the only reasonable conclusion supported
by the circumstantial evidence is that the defendant is guilty. If you can draw two or
more reasonable conclusions from the circumstantial evidence, and one of those
reasonable conclusions points to innocence and another to guilt, you must accept the one
that points to innocence. However, when considering circumstantial evidence, you must
accept only reasonable conclusions and reject any that are unreasonable.” The court also
gave CALCRIM No. 225, which echoed CALCRIM No. 224 with respect to
circumstantial evidence of intent and mental state.



                                            14
       In a motion for new trial, appellant argued the quoted portion of the prosecutor’s
rebuttal argument and its reference to the pointillist painting was misconduct because
“[e]quating reasonable doubt to a bunch of dots created by an artist or puzzle pieces is
preposterous” and lowers the burden of proof beyond a reasonable doubt. The court
denied the motion, concluding the prosecutor’s argument did not amount to misconduct
or alter the burden of proof.

       2. Prosecutorial Misconduct—General Principles
       “ ‘ “The standards governing review of [prosecutorial] misconduct claims are
settled. ‘A prosecutor who uses deceptive or reprehensible methods to persuade the jury
commits misconduct, and such actions require reversal under the federal Constitution
when they infect the trial with such “ ‘unfairness as to make the resulting conviction a
denial of due process.’ ” [Citations.] Under state law, a prosecutor who uses such
methods commits misconduct even when those actions do not result in a fundamentally
unfair trial.’ [Citation.]” ’ ” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th
335, 427.)3
       “Advocates are given significant leeway in discussing the legal and factual merits
of a case during argument. [Citation.] However, ‘it is improper for the prosecutor to
misstate the law generally [citation], and particularly to attempt to absolve the
prosecution from its . . . obligation to overcome reasonable doubt on all elements
[citation].’ ” (People v. Centeno (2014) 60 Cal.4th 659, 666 (Centeno).) When a
prosecutor’s remarks to the jury are at issue, the defendant must demonstrate “ ‘[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


       3
          “[T]he term prosecutorial ‘misconduct’ is somewhat of a misnomer to the extent
that it suggests a prosecutor must act with a culpable state of mind. A more apt
description of the transgression is prosecutorial error.” (People v. Hill (1998) 17 Cal.4th
800, 823, fn. 1.)


                                             15
the jury drew the most damaging rather than the least damaging meaning from the
prosecutor’s statements. [Citation.]’ ” (Id. at p. 667.)

       3. Analysis
       Appellant likens the prosecutor’s reference to the pointillist painting to arguments
made by the prosecutors in People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1264-
1269 (Katzenberger) and People v. Otero (2012) 210 Cal.App.4th 865, 869-874 (Otero),
which used a puzzle analogy and diagram/map analogy, respectively, to illustrate the
concept of reasonable doubt. We are not persuaded.
       In Katzenberger, the prosecutor’s closing argument included a PowerPoint
presentation in which six of eight puzzle pieces created a picture immediately and easily
recognizable as the Statue of Liberty, although a portion of the statue’s face and torch
were not visible. (Katzenberger, supra, 178 Cal.App.4th at pp. 1264-1265.) Over
defense objection, the prosecutor argued that even without the missing pieces, a person
would know beyond a reasonable doubt the puzzle depicted the Statue of Liberty. (Ibid.)
The appellate court concluded the PowerPoint presentation was misleading because it left
the “distinct impression that the reasonable doubt standard may be met by a few pieces of
evidence” and “invite[d] the jury to guess or jump to a conclusion, a process completely
at odds with the jury’s serious task of assessing whether the prosecution has submitted
proof beyond a reasonable doubt.” (Id. at p. 1267.) The presentation had also suggested,
erroneously, that proof beyond a reasonable doubt could be measured quantitatively at
75 percent (six of eight puzzle pieces). (Id. at pp. 1267-1268.) Though the prosecutor’s
actions were harmless in light of the overwhelming evidence of the defendant’s guilt and
the jury instructions correctly defining reasonable doubt, the presentation did amount to
misconduct. (Id. at pp. 1268-1269, applying standard of prejudice articulated in
Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)
       In Otero, the court disapproved the prosecutor’s use of a diagram depicting the
outlines of California and Nevada that showed ocean to the left of California and a dollar
sign in southern Nevada, but contained inaccuracies such as showing a city called “San



                                             16
Diego” in the northern part of California. (Otero, supra, 210 Cal.App.4th at p. 869.) At
the bottom of the diagram was the statement, “ ‘Even with incomplete and incorrect
information, no reasonable doubt that this is California.’ ” (Ibid.) The point being made
by the diagram and the accompanying statement—that even with inaccurate information
it was possible to say beyond a reasonable doubt the state depicted was California—was
reiterated by the prosecutor during closing argument before the trial court sustained a
defense objection and told jurors to disregard the diagram and rely solely on the
definition of reasonable doubt provided in the instructions. (Id. at p. 870.) The appellate
court found the argument improper (though harmless under the Chapman standard)
because it urged jurors to “ ‘jump to a conclusion, a process completely at odds with the
jury’s serious task of assessing whether the prosecution has submitted proof beyond a
reasonable doubt.’ ” (Id. at pp. 872, 873.)
       The reasoning of Katzenberger and Otero was approved by the state Supreme
Court in Centeno, in which the court found the prosecutor’s use of a diagram similar to
the one in Otero to be reversible error. (Centeno, supra, 60 Cal.4th at pp. 665-666, 669-
670.) “The use of an iconic image like the shape of California or the Statute of Liberty,
unrelated to the facts of this case, is a flawed way to demonstrate the process of proving
guilt beyond a reasonable doubt. These types of images necessarily draw on the jurors’
own knowledge rather than evidence presented at trial. They are immediately
recognizable and irrefutable. Additionally, such demonstrations trivialize the deliberative
process, essentially turning it into a game that encourages the jurors to guess or jump to a
conclusion.” (Id. at p. 669.)
       Another problem noted by the court in Centeno was the prosecutor’s erroneous
suggestion the People could meet their burden of proof if their theory of the case was
merely “reasonable.” (Centeno, supra, 60 Cal.4th at p. 672.) “[T]he prosecutor’s
argument began with what the jury could consider: reasonably possible interpretations to
be drawn from the evidence. While this is an acceptable explanation of the jury’s starting
point, it is only the beginning. Setting aside the incredible and unreasonable, the jury
evaluates the evidence it deems worthy of consideration. It determines just what that


                                              17
evidence establishes and how much confidence it has in that determination. The standard
of proof is a measure of the jury’s level of confidence. It is not sufficient that the jury
simply believe that a conclusion is reasonable. It must be convinced that all necessary
facts have been proven beyond a reasonable doubt. [Citation.]” (Ibid.)
       The prosecutor’s pointillist painting analogy in this case does not suffer from the
same flaws as the puzzle and diagram analogies in Katzenberger, Otero and Centeno.
The prosecutor did not suggest the standard of proof beyond a reasonable doubt could be
met if portions of the evidence were missing, nor did he place any quantitative measure
on proof beyond a reasonable doubt. (Cf. Katzenberger, supra, 178 Cal.App.4th at
pp. 1267-1268.) He did not invite the jurors to jump to a conclusion based on their own
knowledge of facts outside the evidence, but urged them instead to do the opposite: to
stand back and review all of the evidence presented. (Cf. Otero, supra, 210 Cal.App.4th
at p. 870; Centeno, supra, 60 Cal.4th at p. 669.) And nothing in the prosecutor’s remarks
can be construed to equate “beyond a reasonable doubt” with a merely “reasonable” view
of the evidence presented, without regard to the jury’s level of confidence in its
conclusion. (Cf. Centeno, at p. 672.)
       The court gave CALCRIM No. 220, which fully and correctly defined the standard
of proof beyond a reasonable doubt. (People v. Garelick (2008) 161 Cal.App.4th 1107,
1119.) The pointillist painting analogy did not understate the People’s burden, and there
is no reasonable likelihood the jury applied the challenged portion of the prosecutor’s
argument in an improper or erroneous manner. (Centeno, supra, 60 Cal.4th at p. 667.)
       Appellant argues that by asking the jury to “stand back and take a look at the big
picture,” and by urging it to base its verdict on “[t]he totality of the circumstances in this
case,” the prosecutor invited jurors to disregard the rule that in a case based on
circumstantial evidence, each essential “link” in the chain of evidence necessary to
establish guilt must itself be established beyond a reasonable doubt. (People v. Meyes
(1961) 198 Cal.App.2d 484, 497, fn. 4; see People v. Tripp (2007) 151 Cal.App.4th 951,
956; People v. Redrick (1961) 55 Cal.2d 282, 290 [strength of “links” in circumstantial
evidence case is for trier of fact, but reversal is required when a necessary link is


                                              18
missing].) We do not agree. Asking the jury to view the evidence as a whole does not
suggest they could return a verdict without finding all of the “links” necessary to convict.
The jury was properly instructed with CALCRIM No. 224, which stated, “Before you
may rely on circumstantial evidence to conclude that a fact necessary to find the
defendant guilty has been proved, you must be convinced that the People have proved
each fact essential to that conclusion beyond a reasonable doubt.” This instruction
accurately stated the law and we presume the jury followed it when evaluating the
evidence. (People v. Livingston (2012) 53 Cal.4th 1145, 1166 [CALCRIM No. 224
correct statement of the law]; People v. Hovarter (2008) 44 Cal.4th 983, 1005; People v.
Boyette (2002) 29 Cal.4th 381, 453 [on appeal, courts presume jury followed instructions
given].)

                                      DISPOSITION
       The judgment is affirmed.




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                    NEEDHAM, J.



We concur.




JONES, P. J.




SIMONS, J.




               20
(A140421)




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