Filed 9/29/14 P. v. Wallis 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                        (Glenn)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C074972

         v.                                                                    (Super. Ct. Nos. 12NCR09406
                                                                                     & 13NCR09623)
RAY LEE WALLIS,

                   Defendant and Appellant.




         A jury convicted defendant Ray Lee Wallis of home invasion robbery in concert
and possession of methamphetamine. The trial court sentenced him to 10 years eight
months in state prison.
         Defendant now contends the prosecutor engaged in prejudicial misconduct during
closing argument, depriving defendant of his due process right to a fair trial. We




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conclude the prosecutor’s comments in closing argument did not rise to the level of
misconduct.
       We will affirm the judgment.
                                      BACKGROUND
                                            A
       Sarah Martin invited Michael Brown to her apartment. Martin initially told Brown
they were alone, but then a man Brown knew as Watts entered from another room. Two
other men, defendant and Torreno, also entered the apartment. Torreno alleged that
Brown had called him “a punk” the year before; when Brown denied any recollection of
the alleged slight, Torreno began assaulting Brown. Defendant and Watts also hit Brown
during the altercation.
       Torreno displayed a knife and demanded Brown’s wallet and phone. By that time,
defendant stood by the door to prevent others from entering the apartment. Torreno
returned Brown’s driver’s license and social security card and Brown left the apartment.
Brown did not report the incident to the police because he hoped to retaliate and retrieve
his wallet and phone himself.
       A short time later, as Brown was waiting outside a nearby bar, he saw defendant
approach alone. When Brown confronted defendant, defendant returned Brown’s phone
and took him to where he was storing the wallet. When Brown said his money ($263)
better be in the wallet, defendant was surprised; defendant said he had been told there
was no money in the wallet. Defendant subsequently confronted Watts about the money
because he was upset he did not receive his share. Some time later, defendant apologized
to Brown for the incident.
       Defendant testified that Martin had invited him to the apartment. When he
returned to the apartment after smoking a cigarette, Torreno was confronting Brown.
Defendant said he never hit Brown, but when Brown approached him by the door,
defendant pushed Brown away. Defendant claimed that he tried to de-escalate the

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situation in the apartment and did not know anyone was at the apartment to commit
robbery. He considered Brown a friend and took Brown’s wallet and phone from the
apartment with the intent of returning them to Brown.
                                              B
         In his closing argument, defense counsel argued, “I do not doubt for even a second
that [Brown] was assaulted. I do not doubt for a second that he was robbed. What I
doubt, Ladies and Gentlemen of the Jury, is that the man that tried to prevent this and the
man that went out of his way to return the property afterwards, the man that the victim
told you is his friend, and the victim told you he doesn’t believe that he got anything out
of this, who [sic] is not a robber and not someone that you should condemn with your
verdict.”
         In rebuttal, the prosecutor stated: “My uncle had a ranch in Morocco, and there
were some housing developments that slowly progressed and more and more houses and
one of the problems that happened was people’s dogs would get together at night. It
could be a poodle. It could be a simple little family dog. Friendly when they’re by
themselves but you put a pack of them together and they’d chase down his cattle and kill
them. . . . And he went out there and would shoot them. [¶] And now, you saw the
defendant testify. And I submit to you it’s like a pack animal. It’s like a dog. And when
he’s in a pack, they act differently.”
         Defense counsel objected to the characterization of defendant. The trial court
overruled the objection.
         The prosecutor continued: “And when they are together and they have a victim,
they act differently. They are all slugging on him and got his wallet and everything like
that.”
                                         DISCUSSION
         Defendant contends the prosecutor committed misconduct by comparing
defendant “to a marauding dog that should be shot for the safety of the community . . . .”

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While we do not condone the prosecutor’s analogy, it did not rise to the level of
misconduct. (People v. Thomas (2012) 54 Cal.4th 908, 943, citing People v. Zambrano
(2007) 41 Cal.4th 1082, 1172.) The prosecutor sought to explain how the same person
could participate in a group assault and robbery of Brown and also apologize for the
behavior and return Brown’s stolen items.
       “ ‘To prevail on a claim of prosecutorial misconduct based on remarks to the jury,
the defendant must show a reasonable likelihood the jury understood or applied the
complained-of comments in an improper or erroneous manner.’ [Citation.]” (People v.
Gamache (2010) 48 Cal.4th 347, 371.) “[P]rosecuting attorneys are allowed a wide range
of descriptive comment and the use of epithets which are reasonably warranted by the
evidence” in presenting their arguments. (People v. Terry (1962) 57 Cal.2d 538, 561.)
“[A] prosecutor is not ‘required to discuss his [or her] view of the case in clinical or
detached detail.’ [Citation.] ‘[T]he use of derogatory epithets to describe a defendant is
not necessarily misconduct.’ (People v. Friend (2009) 47 Cal.4th 1, 32 [defendant
described as ‘ “living like a mole or the rat that he is” ’].) ‘A prosecutor is allowed to
make vigorous arguments and may even use such epithets as are warranted by the
evidence, as long as these arguments are not inflammatory and principally aimed at
arousing the passion or prejudice of the jury.’ [Citation.] We have repeatedly rejected
claims of prosecutorial misconduct involving the use of such epithets in guilt phase
arguments. [Citations.]” (People v. Tully (2012) 54 Cal.4th 952, 1021; see, e.g.,
People v. Farnam (2002) 28 Cal.4th 107, 168 [not misconduct to describe a defendant’s
actions as “ ‘monstrous,’ ‘cold-blooded,’ vicious,” or to describe the defendant as a
“ ‘predator’ ”]; People v. Williams (1997) 16 Cal.4th 153, 220-221 [not misconduct to
describe the defendant as part of “ ‘a pack of laughing hyenas’ ”]; People v. Mayfield
(1997) 14 Cal.4th 668, 789 [fair argument for prosecutor to compare the defendant to a
“ ‘mad dog’ ” that needs to be shot]; Terry, supra, 57 Cal.2d at pp. 561-562 [not
misconduct to characterize defendant as an “ ‘animal’ ”].) Thus, a prosecutor’s remarks,

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though “harsh and unbecoming,” do not amount to misconduct where they “constitute[]
reasonable -- if hyperbolic and tendentious -- inferences from the evidence.” (People v.
Rowland (1992) 4 Cal.4th 238, 276-277.)
       Here, defense counsel argued to the jury that defendant was not guilty because a
person who would return stolen items and apologize would not engage in a beating and
robbery of the victim. In response, the prosecutor was entitled to present an alternate
interpretation of the evidence: that defendant was a different person when he was with
Watts and Torreno, a person who participated in an assault and robbery of Brown. The
analogy did not improperly incite the jury’s passion or prejudice and it was not
misconduct.
                                      DISPOSITION
       The judgment is affirmed.


                                                               MAURO                      , J.


We concur:


              BLEASE                  , Acting P. J.


              HOCH                     , J.




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