Filed 8/14/15 P. v. Wilson CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                          D066729

         Plaintiff and Respondent,

         v.                                                          (Super. Ct. Nos. SCD255447,
                                                                     SCD237719)
JOHN TRESS WILSON,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Joan P.

Weber, Judge. Affirmed.



         Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Barry Carlton, and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.

         A jury convicted John Tress Wilson of possession of a firearm by an ex-felon.

Wilson contends the trial court erroneously overruled his objection to the prosecutor's
remarks in her closing argument relating to his prior felony conviction. We affirm the

judgment.

                  FACTUAL AND PROCEDURAL BACKGROUND

       In April 2014, Officer Tom and Officer Lotz of the San Diego Police Department

conducted a traffic stop of Wilson's vehicle. During the stop, Tom searched Wilson's

trunk and found a small semi-automatic pistol inside a beanie cap. The gun was operable

and had bullets in the magazine and one in the chamber. DNA samples taken from the

gun matched Wilson's DNA.1

       After the prosecutor's case-in-chief, the parties stipulated that Wilson had a

qualifying prior felony conviction, and Wilson chose not to present any affirmative

evidence. During closing argument, the prosecutor discussed the knowledge element of a

possession charge and argued Wilson's prior felony conviction established that he had a

motive to hide the pistol in the car's trunk. The prosecutor said "Why would somebody

hide a gun in their car, in their trunk? Why? Why would a convicted felon hide a gun

inside of his trunk[,] inside of a beanie[,] inside of a CD case? ¶ Why would he do that?

¶ Because he's a felon. He obviously knows it, and he knows that he's not supposed to

have it."




1      The probability that an individual randomly selected would match the predominate
DNA profile found on the gun are one in ninety-three quintillion for the Caucasian
population, one in seventeen quintillion for the African-American population, and one in
three hundred ninety quintillion for the Hispanic population. A quintillion has 18 zeros.
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       Despite having previously stipulated to a felony conviction, Wilson objected to the

prosecutor's argument, contending she was misusing his felony conviction as negative

character evidence of propensity to commit a crime. The prosecutor disagreed and

explained: "[The felony conviction is] an element of the offense. We stipulated . . . [he

is] a felon, so I can call him a felon." The court overruled the objection, concluding that

the prosecutor was entitled to proffer a reason why Wilson would have concealed the

weapon in the trunk of the car.

       The prosecutor then continued her argument to the jury: "But why would

somebody hide a gun inside of a car? Why would the defendant, a felon who's not

supposed to be possessing a gun, hide it in the back of his vehicle? ¶ Because he's not

supposed to have it. That is why you hide things, because you don't want anybody else to

find it, because you know you're not supposed to have those things. ¶ People do it all the

time. Children do that all the time, thinking they're smarter than their parents. Thinking

they're smarter than the cops. People aren't going to look there if you hide it; they're not

going to find it." Wilson argued in his closing remarks that the prosecution provided no

evidence that he knew about the existence of the gun at all.

       Before jury deliberations, the court instructed the jury on the prior felony

stipulation: "The defendant and the People have stipulated[,] or agreed[,] the defendant

was previously convicted of a felony. This stipulation means that you must accept this

fact as proved. ¶ Do not consider this fact for any other purpose. Do not speculate about

or discuss the nature of the conviction."

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                                       DISCUSSION

                                              I

                                      Legal Principles

       A prosecutor's misconduct violates the federal Constitution only when it is so

egregious and infects the trial with such unfairness that the resulting conviction is a

denial of due process. Such pervasive misconduct requires reversal unless it is harmless

beyond a reasonable doubt. (People v. Hill (1998) 17 Cal.4th 800, 844.) Conduct that

does not render a trial fundamentally unfair constitutes prosecutorial misconduct under

state law only if it involves the use of deceptive or reprehensible methods to attempt to

persuade either the court or the jury. (People v. Benavides (2005) 35 Cal.4th 69, 108.)

State law misconduct necessitates reversal where it is reasonably probable the

prosecutor's intemperate behavior affected the verdict. (People v. Espinoza (1992)

3 Cal.4th 806, 820.)

       With regard to a claim of misconduct based on remarks to the jury, defendant must

show a reasonable likelihood the jury understood or applied the complained upon

comments in an improper or erroneous manner. In conducting this inquiry, a reviewing

court will not " 'lightly infer' that the jury drew the most damaging rather than the least

damaging meaning from the prosecutor's statements." (People v. Frye (1998) 18 Cal.4th

894, 970, citing People v. Howard (1992) 1 Cal.4th 1132, 1192.)

       Further, a prosecutor is given wide latitude during closing argument. (People v.

Collins (2010) 49 Cal.4th 175, 213.) Argument may be vigorous as long as it amounts to

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fair comment on the evidence, which can include reasonable inferences or deductions to

be drawn from that evidence. (Ibid.) During closing argument, counsel may state

matters that are not in evidence but that are common knowledge or illustrations drawn

from common experience, history or literature. (People v. Ward (2005) 36 Cal.4th 186,

215.)

                                              II

                       Prosecutorial Misconduct and Harmless Error

        Wilson alleges the prosecutor committed prejudicial misconduct during closing

argument by using his felony conviction as negative character evidence to show his

propensity to commit crimes. He contends the court erred in overruling his objection and

allowing the jury to consider his prior conviction beyond its admissible scope. Wilson

claims the error was prejudicial because there was a reasonable probability that the

outcome would have been different but for the error. We find no prejudicial misconduct.

        At trial, the parties stipulated to Wilson's prior felony conviction, which allowed

the prosecutor to argue to the jury reasonable inferences to be drawn therefrom.

(People v. Harris (2005) 37 Cal.4th 310, 345.) The prosecutor reasonably argued from

Wilson's felony conviction and the evidence of the well-hidden gun that Wilson did not

want to suffer the consequences of another felony conviction, which motivated him to

hide the gun. (See People v. Collins, supra, 49 Cal.4th at pp. 213-214) Common

experience permits an inference that Wilson, a person convicted of a felony, would



                                              5
understand the consequences of possessing a firearm and take measures to avoid the

effects of another felony conviction.

       Despite Wilson's contentions, the prosecutor neither referenced Wilson's prior

felony conviction to establish his propensity to commit crimes nor did she argue that

Wilson's prior felony conviction proved that he had a predisposition to commit crimes.

The prosecutor's argument that the prior felony conviction gave Wilson a reason to hide

the gun did not render Wilson's trial fundamentally unfair nor did it involve the use of

deceptive or reprehensible methods to attempt to persuade the jury. 2

       In addition, the trial court properly instructed the jury they were not allowed to

consider the prior felony conviction for any purpose other than to show that Wilson was

previously convicted of a felony. Juries are presumed to follow the court's instructions,

and there is nothing in the record to suggest the jury did not do so in this case. (People v.

Ryan (1981) 116 Cal.App.3d 168, 179.) The prosecutor did not ask the jury to consider

the prior conviction for any other purpose, i.e., she did not argue the prior conviction for

an improper purpose such as proof of criminal character or a propensity to commit crime.

She simply argued that the jury could reasonably infer from the fact of the prior




2       People v. Bolton (1979) 23 Cal.3d 208, 212, a case relied upon by Wilson, is
easily distinguishable from this case. In Bolton the prosecutor implied in his argument
that he knew of damaging evidence unknown to the jury which proved the defendant's
guilt, when in fact the defendant had no criminal record. Here the prosecutor never
discussed evidence not in the record but simply drew a reasonable inference on
defendant's state of mind and motive from the admissible evidence of Wilson's stipulated
prior felony conviction.
                                             6
conviction that Wilson knew he was not supposed to possess a gun and would have a

motive to take special efforts to conceal it. Especially considering the legal correctness

of the prosecutor's argument, there is no reason to conclude that the jury did not follow

the court's instruction on use of a prior felony conviction.

       Moreover, even if the prosecutor's argument had been improper, it was harmless

because the evidence compelled the conclusion that Wilson possessed the gun. Police

stopped and searched the car that Wilson drove and solely occupied. The search revealed

a gun well-hidden inside a beanie and a CD case in the trunk. Wilson's DNA was found

on the gun. Under any conceivable standard, even absent the prosecutor's remarks in

closing argument about Wilson's state of mind, based on the evidence, it was not

reasonably probable that the jury would have reached a verdict favorable to Wilson.

(See People v. Espinoza, supra, 3 Cal.4th at pp. 820-821; People v. Watson (1956)

46 Cal.2d 818, 836.)

       We conclude the statements made by the prosecutor, when reviewed in full

context, were innocuous and did not rise to the level of reprehensible deceitfulness

required to constitute reversible prosecutorial error (see People v. Ayala (2000)

23 Cal.4th 225, 283-284) and that even if the prosecutor had erred, her error was

harmless.




                                              7
                                     DISPOSITION

      The judgment is affirmed.



                                                                               Prager, J.*

WE CONCUR:



MCINTYRE, Acting P. J.



IRION, J.




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