Filed 6/23/15 P. v. Gabrielson CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049572

         v.                                                            (Super. Ct. No. 13HF0379 )

MICHAEL GABRIELSON and CORY                                            OPINION
BRIAN SULLIVAN,

     Defendants and Appellants.


                   Appeal from a judgments of the Superior Court of Orange County, Gary S.
Paer, Judge. Affirmed in part and remanded with directions.
                   Sheila O’Connor, under appointment by the Court of Appeal, for Defendant
and Appellant Michael Gabrielson.
                   Mark D. Johnson, under appointment by the Court of Appeal, for
Defendant and Appellant Cory Brian Sullivan.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, William M. Wood, Meagan J. Beale and Michael Mogan, Deputy Attorneys
General, for Plaintiff and Respondent.
              Michael Gabrielson and Cory Brian Sullivan appeal from the judgments
entered following their convictions on counts alleging first degree robbery (Penal Code,
§§ 211, 212.5, subd. (a), 213, subd. (a)(1)(A); all further statutory references are to this
code); first degree burglary with the intent to commit larceny (§§ 459, 460, subd.(a)); and
false imprisonment by means of violence, menace, fraud or deceit (§§ 236, 237, subd.
(a).) Gabrielson admitted to three prison priors, and Sullivan admitted to one prior strike
for purposes of section 667, subdivisions (d) and (e)(1), and three other prison priors.
               The defendants were sentenced separately. The trial court sentenced
Gabrielson to the midterm of six years on the robbery count, and later sentenced Sullivan
to the low term of three years on the same count, but doubled it because of his prior
strike. The court imposed similar terms for both defendants on the burglary count, but
stayed those terms based on section 654. And on the false imprisonment count, the court
imposed a two-year term on Gabrielson, and later imposed a term of one year and four
months on Sullivan, again doubled. However, the court ordered both of those false
imprisonment sentences to run concurrently with the terms imposed on each defendant
for the robbery. After the court imposed additional terms based on prison priors and
Sullivan’s prior strike, Gabrielson’s total sentence was seven years and Sullivan’s total
sentence was 13 years.
              Gabrielson argues the court abused its discretion by sentencing him to the
midterm on each of the counts, when it sentenced Sullivan – whose culpability was
allegedly the same or higher – to only the low term. And joined by Sullivan, he also
argues the court erred by imposing sentence on the false imprisonment count, which they
believe should also have been stayed under section 654.
              Both defendants also assert the prosecutor engaged in prejudicial
misconduct by (1) improperly “vouching” for the credibility of her main witness, and (2)
implying the defendants were withholding evidence from the jury. They also claim that
to the extent those assertions were waived by a failure to object in the trial court, that

                                              2
failure amounted to ineffective assistance of counsel. Both defendants have filed
petitions for habeas corpus, offering additional evidence in support of this claim.
              We conclude defendants’ claim of sentencing error on the false
imprisonment count has merit, and we consequently remand the case to the trial court
with directions to prepare new sentencing abstracts reflecting that the terms imposed on
both defendants for false imprisonment are stayed pursuant to section 654. In all other
respects, the judgments are affirmed.
              Gabrielson’s contention that his sentence is arbitrary and unfair, as
compared to Sullivan’s, is not cognizable on appeal. An appellant can argue that his
sentence is grossly disproportionate to his own culpability for the crime of which he was
convicted, that it otherwise qualifies as cruel or unusual punishment, or that the court
misapplied the sentencing statutes to his case; but California law does not allow a claim
of sentencing error based solely on a review of how appellant’s sentence compares to one
imposed on someone else.
              And defendants’ claims of prosecutorial misconduct fail because the
evidence does not support their contention the prosecutor’s assertion that her witness
“was very credible” amounted to improper vouching, or that her expression of
disappointment that the jury would not be allowed to take the transcript of a lengthy
recorded interview into the jury room implied defendants were withholding evidence. In
context, it is clear the prosecutor’s credibility argument was based on an evaluation of the
evidence admitted in the case, and that her lament about the excluded transcript reflected
only a recognition that it would be harder for the jury to focus on what she considered the
important parts of the recorded interview without having the transcript to use as a
reference. There was no implication that the transcript – which jurors had already been
allowed to review as they listened to the recorded interview during trial – contained
different evidence.



                                             3
              Because we have concluded there is no merit in defendants’ claims of
prosecutorial misconduct – and thus none in their related claims of ineffective assistance
of counsel – we need not consider those issues further in the context of petitions for
habeas corpus, and we issue separate orders denying those petitions.


                                          FACTS


              In November 2012, 29-year-old Sean Causey lived at his mother’s home in
Coto de Caza. Causey had a history of drug addiction, including heroin and
methamphetamine, and had in the past stolen from his parents to support his drug habit.
As a consequence, his mother stored all her valuables – including firearms – in a locked
safe located in one of two locked closets in her bedroom. She kept the only keys.
              Causey’s mother went away for the weekend, leaving him alone in the
house. He was instructed to have no visitors. However, Causey met Simone Timatyos
through another friend, and agreed to let her stay at his mother’s house for the night
because she had nowhere else to go.
              Timatyos stayed that first night without incident, and left on Saturday
morning. Later that day, however, Causey’s friend called him to ask if Timatyos could
spend the night at his house again, and he agreed. Timatyos arrived back at the house
with her boyfriend, defendant Gabrielson. She mentioned to Causey that Gabrielson was
a member of PENI, which Causey knew was a white supremacist gang, but Causey was
not particularly concerned about that. He let them both into the house, and after he gave
the two of them a tour of the house, they all did drugs together, including heroin and
methamphetamine.
              At some point in the evening, the three of them left in Causey’s car to get
more drugs, which Gabrielson paid for. They returned to the house and continued to do
more drugs until Sunday.

                                             4
               Sometime around sunset on Sunday, defendant Sullivan arrived, ostensibly
to pick up Timatyos. Causey and Timatyos went to the front gates of Coto de Caza to
escort him in. Causey thought Sullivan would be staying for only a short time. Just
before Sullivan’s arrival, Causey received a delivery of more heroin to the house, also
paid for by Gabrielson – albeit using counterfeit money.
               After Sullivan’s arrival, more drugs were consumed in Causey’s room.
Causey injected heroin, and just as Causey was “nodding out” from its effect – meaning
that although he was standing, he was “going in and out of sleep” – Sullivan hit him in
the face with a Diet Coke bottle. Causey and Sullivan then wrestled, ending up on a bed
with Gabrielson holding Causey down. By that point, Causey was no longer “nodding
out.” As he explained, “I feel I had sobered up because of what was happening.” Causey
was then escorted through the house, ending up in the shower stall in his mother’s
bedroom, where he was guarded by Timatyos while defendants “were going through the
house, looking for things to steal.” Causey testified he had been “looking for a phone”
while being walked through the house, but noticed the phones had been disconnected.
               While Causey was being guarded in the shower, defendants managed to pry
open the doors of the locked closets, and started bagging up items of value, including a
video camera, ammunition, and a bullet proof vest. Causey was scared that if he tried to
leave the shower, someone would harm him or try to restrain him further. After
defendants had finished in one of the closets, Causey was moved from the shower stall
into the closet.
               Defendants had removed tools from the garage, in an apparent attempt to
facilitate opening the locked safe. They were unsuccessful, however.
               At some point on Sunday night, and again on Monday, Causey was ordered
to call his mother, to confirm when she would be arriving home. She informed him it
would be Monday evening. Causey was too scared to tip her off about what was going
on.

                                            5
               Defendants and Timatyos stayed at the house until Monday afternoon,
making food and swimming in the pool. Causey stayed in his room. Ultimately they left
in Sullivan’s pickup truck, after deciding to leave behind the majority of items they had
stolen from the house. They told Causey they would leave the items if he agreed not to
call the police.
               Causey did not call the police. Instead, he testified that he called his
mother and told her what had happened. He then cleaned the house somewhat, replacing
items temporarily removed by defendants, and attempting to remove all evidence of drug
paraphernalia. By the time Causey’s mother arrived home, he had left, driving away in
her car to visit a friend. He and his friend then drove around for awhile, finally returning
to Causey’s house. When Causey saw that police officers were at the house, he advised
his friend – who had drugs in his possession – to get out of the car and promised to call
him later.
               When Causey went in the house, he told the police what had happened. His
mother was quite upset with him and did not initially believe his story.
               According to Causey’s mother, he did not tell her what had happened when
he telephoned her shortly after defendants and Timatyos had left, as he claimed. She
testified that although he did call her, and sounded very upset – “scared, lonesome,
crying, whining” – he did not tell her anything about the robbery. Instead, she learned of
it only when she arrived home to find both Causey and her car gone, and saw that her
closets had been broken into. She was frightened and called the police.
               Causey was subsequently arrested for a probation violation, and it was not
until a couple of months later that sheriff’s department investigators contacted him in jail,
and questioned him about the events that had taken place during that weekend.
               In contrast to Causey’s story, defendants portrayed the weekend as
involving the full consent of Causey. They asserted the most plausible interpretation of
the evidence was that Causey had been an active participant in the decision to break into

                                               6
his mother’s closets (as he had admittedly done previously) and in the effort to gain
access to the safe. In their closing arguments, defendants attacked Causey’s credibility,
highlighting his long history of drug addiction and his prior criminal history. They
argued Causey’s version of events was not credible, and pointed out he had a significant
motivation to lie.
              In her rebuttal, the prosecutor responded to this portrayal of Causey stating:
“[defense counsel’s] characterization that [Causey] is a scoundrel and a liar . . . was
pretty severe, and to say this was nothing but a party weekend that ended in the taking of
some trinkets is pretty offensive.” She then said, “I will say this. Sean Causey was very,
very credible. I guess the moral of the story if you want to go with the defense
interpretation is that you should never believe anything that someone who uses drugs or
has an addiction problem says. I mean, let’s commit crimes against those people because
they are never credible.”
              The prosecutor went on to explain why the testimony Causey gave was
credible, pointing out that Causey would have no motive to break into the closets, since
Gabrielson had been able to pay for the drugs Causey wanted with counterfeit cash. Her
theory was that the robbery was not motivated by the desire to obtain drugs (Causey’s
only potential motivation), but was instead primarily intended by defendants as a means
of obtaining the firearms which they knew were in the locked closets, for use by PENI,
their White supremacist gang. She also pointed out Causey was at all times aware that
the valuables in the closets were kept inside a locked safe, which he knew he would have
no means of opening. Hence, Causey knew there was nothing significant to be gained by
breaking into the closets. And she also noted it made no sense for Causey to be put in the
shower under guard (which Timatyos confirmed in her testimony had occurred), if he had
been a willing participant in the robbery.
              Finally, the prosecutor returned to defendants’ contention Causey was a
“scoundrel,” arguing “I don’t think you are going to find that Sean is a scoundrel and a

                                              7
liar and incredible. If he was making up this story, why would he admit to his own drug
use? Why would he admit that he was nodding off while he was in his bedroom and
injecting himself with heroin? Why would he subject himself to the embarrassment of
telling anybody that he was using heroin and shooting up? [¶] Why would he admit that
Mickey Gabrielson was nice to him while this was happening before Sullivan got
there? . . . [¶] If he is making it up, he would make it more elaborate. . . . Instead, he is
telling you the truth.”
              The jury returned guilty verdicts against both Gabrielson and Sullivan on
the counts of robbery, burglary and false imprisonment, although it acquitted them on
counts alleging they had engaged in those crimes for the benefit of their gang, PENI.
              The trial court sentenced Gabrielson first, in a morning court session, and
then sentenced Sullivan in a separate session in the afternoon of the same day. The court
deemed the residential robbery to be the principal term for both defendants, sentencing
Gabrielson to the midterm sentence of six years on that count, and later sentencing
Sullivan to the low term of three years, which was then doubled because of his prior
strike. On the burglary count, the court also imposed the midterm of six years on
Gabrielson, and the low term of three years on Sullivan, which was again doubled
because of his prior strike. However, the court stayed the sentences for both defendants
on the burglary count, based on section 654. On the false imprisonment count, the court
imposed a two-year term on Gabrielson, and a term of one year and four months on
Sullivan, again doubled. However, the court ordered both of those false imprisonment
sentences to run concurrently with the six-year terms imposed on each defendant for the
robbery.
              The court sentenced Gabrielson to an additional one-year term for each of
his prison priors, but ordered two of those to run concurrently, for a total sentence of
seven years. The court imposed an additional five-year term on Sullivan for his prior



                                               8
strike, plus one additional year for two prison priors (it struck the third), for a total
sentence of 13 years.
1. Gabrielson’s Assertion of Sentencing Error
              1.1 Proportionality Review
              Gabrielson first asserts the court abused its discretion by “arbitrarily”
sentencing him to the middle term on the robbery count, while sentencing his
codefendant, Sullivan, to the lower term on that same count. He claims the court relied
on “the same sentencing factors” in sentencing both defendants, which “demonstrates the
capriciousness of its decision to sentence [him] to the midterm on the principal count and
Sullivan to the low[]term.”
              As a general rule, sentencing errors are waived if not raised in the trial
court. (People v. Scott (1994) 9 Cal.4th 331, 353 [“the waiver doctrine should apply to
claims involving the trial court’s failure to properly make or articulate its discretionary
sentencing choices”].) However, Gabrielson argues there could be no waiver of his
comparative challenge based on Sullivan’s relatively lenient sentence because Sullivan
had not yet been sentenced at the time the court imposed Gabrielson’s sentence. The
point is moot because the law does not entitle Gabrielson to challenge his sentence based
on how it compares to the sentence meted out to his codefendant.
              The concept Gabrielson invokes in support of his argument is “‘“intracase
proportionality review.”’” (See People v. Debose (2014) 59 Cal.4th 177, 212 (Debose).)
However, as explained in People v. Mincey (1992) 2 Cal.4th 408, 476 (Mincey), that
concept (1) applies only in death penalty cases, and (2) does not permit a defendant to
compare his sentence with that of a codefendant. “Evidence of the disposition of a
codefendant’s case . . . is not relevant to the decision at the penalty phase, which is based
on the character and record of the individual defendant and the circumstances of the
offense.” (Id. at p. 476.)



                                               9
              In fact, the defendant in Debose – who was contesting the imposition of a
death penalty – tried to make such a comparison, and found that effort resoundingly
rejected by the Supreme Court: “Defendant contends that his death sentence is
inconsistent with, and disproportionate to, the sentences of codefendants Flagg and
Higgins, because they each received sentences of life without the possibility of parole
despite having, according to defendant, ‘far worse aggravating factors’ than he had. As a
result, he argued, his death sentence violated the Eighth and Fourteenth Amendments to
the federal Constitution. Not so. ‘As we have explained, “[p]roperly understood,
intracase proportionality review is ‘an examination of whether [a] defendant’s death
sentence is proportionate to his individual culpability, irrespective of the punishment
imposed on others.’”’” (Debose, supra, 59 Cal.4th at p. 212.)
              Interestingly, Gabrielson acknowledges that our courts have “rejected the
notion of . . . intracase proportionality review in sentencing except when the sentence is
grossly disproportionate to the crime,” and that such review is not required in cases “not
involving [a] death sentence.” But he nonetheless argues that in Mincey, the Supreme
Court “left room for courts to include a comparison of codefendants in its sentencing
analysis with regard to culpability and involvement, which in this case should have led to
a different result.” Gabrielson has misconstrued Mincey.
              First, nothing in Mincey expands intracase proportionality review beyond
the realm of death penalty cases. And second, the purported “room” allowed by Mincey
is found in its statement that evidence of a “codefendant’s complicity and involvement in
the offense” could be relevant in assessing whether the imposition of the death penalty
was “disproportionate to [appellant’s] individual culpability.” (Mincey, supra, 2 Cal.4th
at p. 476, italics added.) So the relevant proportionality review, even if applicable,
remains focused on the relationship between the appellant’s individual culpability and the
sentence imposed upon him. “Although such proportionality analysis takes into account
the defendant’s relative responsibility for the crime as compared to others who were

                                             10
involved, the disposition of codefendants’ cases is not part of the analysis.” (People v.
Ledesma (2006) 39 Cal.4th 641, 744.)
               Nor can we “reconsider [the rule] prohibit[ing] the examination of a
codefendant’s disposition,” as Gabrielson urges. The rule has been imposed by our
Supreme Court, and any argument that it should be reconsidered must be directed there.
               Because Gabrielson’s contention that the court abused its discretion was
based entirely on a comparison between the midterm sentence imposed on him, and the
low term sentence imposed on Sullivan, the issue is not cognizable on appeal.


               1.2 Stay of Sentence for False Imprisonment Under Section 654
               Gabrielson, joined by Sullivan, also contends the court erred when it failed
to stay the term imposed on the false imprisonment count. He argues that because the
evidence demonstrates Causey’s imprisonment was carried out solely for the purpose of
facilitating the robbery, only one penalty could be imposed for both crimes under section
654. “[S]ection 654 prohibits ‘[p]unishment for two offenses arising from the same
act . . . .’ [Citation.] ‘Insofar as only a single act is charged as the basis for the
conviction . . ., the defendant can be punished only once.’” (People v. Latimer (1993) 5
Cal.4th 1203, 1208.)
               This issue is reviewable on appeal even if not raised in the trial court.
“[T]he ‘unauthorized sentence’ concept constitutes a narrow exception to the general
requirement that only those claims properly raised and preserved by the parties are
reviewable on appeal” and “[i]t is well settled . . . that the court . . . imposes an
‘unauthorized’ sentence when it erroneously stays or fails to stay execution of a sentence
under section 654.” (People v. Scott, supra, 9 Cal.4th at p. 354 & fn. 17.)
               On the merits, the Attorney General concedes that “section 654 bars
multiple punishments for separate offenses arising out of a single occurrence if the
defendant had a single objective,” but argues that because the trial court chose to impose

                                               11
the separate sentence for false imprisonment, we must infer it also determined that
defendants “had a separate intent and objective when they forced Sean into the shower
stall and later into the closet.” That is true as far as it goes; the problem is, it does not go
very far. The Attorney General’s argument is that while it acknowledges a trial court’s
“implied finding that a defendant had a separate intent and objective for each charged
offense will be upheld if it is supported by substantial evidence” (italics added), it fails to
then identify what “separate intent and objective.” The court might have impliedly found
prompted Causey’s false imprisonment, let alone point out any evidence in the record to
support it.
              Instead, the Attorney General simply argues that Causey’s false
imprisonment “was not necessary to the robbery and burglary” because (1) he was
“nodding out” on heroin even before Sullivan hit him; (2) he would have been disinclined
to call the police, given his own probationary status, and (3) defendants had, in any event,
“disabled” the phones. And because falsely imprisoning Causey was not necessary to the
robbery, the Attorney General suggests the trial court was free to infer it must have been
intended to achieve some other, unstated, objective. But this argument is flawed, because
the fact that imprisoning Causey may not have proved necessary to the robbery is not the
same thing as demonstrating these defendants did not intend it to facilitate that crime.
              In fact, the evidence cited by the Attorney General actually suggests they
did. Timatyos testified the phones were disabled during the robbery out of a concern that
Causey actually would call the police if given the chance. Moreover, the phones were
merely disconnected, not permanently disabled, so there was a distinct possibility Causey
might have been able to use one if left to roam the house alone while the robbery was
being carried out. And Causey himself testified he was “looking for a phone” while
being escorted through the house to the shower stall, and that his “nodding out” phase of
heroin intoxication terminated abruptly when Sullivan hit him with the Diet Coke bottle
and they began fighting. As he explained it, “I feel I had sobered up because of what was

                                               12
happening.” Thus, despite the Attorney General’s claim, it is impossible to conclude that
imprisoning Causey was unnecessary as a means of dissuading him from calling the
police during the robbery, let alone that defendants themselves would have viewed it that
way.
               Nor can we discern what alternative objective might have been served by
Causey’s imprisonment. The Attorney General does refer to it, in conclusory fashion, as
a “humiliating act,” and we could easily agree that a victim who was forced into a shower
stall, and then a closet, by people he had invited into his home, would likely feel
humiliated. But that fact alone cannot be bootstrapped into a determination that
defendants intended to humiliate, as a distinct objective.
               On this record, we can identify no substantial evidence to support an
implied finding that defendants’ imprisonment of Causey arose out any “intent and
objective” that was separate from the robbery. Consequently, we conclude the trial court
erred when it failed to stay their sentences on the false imprisonment count pursuant to
section 654.


2. Prosecutorial Misconduct and Ineffective Assistance of Counsel
               Defendants next argue the prosecutor engaged in misconduct by
(1) improperly “vouching” for the credibility of Causey, her main witness, and (2)
implying defendants were withholding evidence from the jury by refusing to allow the
transcript of a recorded interview in the jury room. They also claim that to the extent
those assertions were waived by a failure to object in the trial court, that failure amounted
to ineffective assistance of counsel.
               Generally, the failure to object to such prosecutorial misconduct at the time
it occurred waives the contention on appeal. However, because defendants have also
asserted that their own counsels’ failure to object to this evidence constituted ineffective
assistance, we will consider the issue of prosecutorial misconduct in the context of that

                                             13
assertion. (See People v. Trujeque (May 27, 2015, S083594) __Cal.4th __ [215 Cal.
LEXIS 3895 at pp. 30-31] [considering “a double jeopardy issue on appeal that was
technically not cognizable because a meritorious double jeopardy defense relates to a
defendant’s claim of ineffective assistance of counsel”]; People v. Scott (1997) 15 Cal.4th
1188, 1201.)
               “‘In assessing claims of ineffective assistance of trial counsel, we consider
whether counsel’s representation fell below an objective standard of reasonableness
under prevailing professional norms and whether the defendant suffered prejudice to a
reasonable probability, that is, a probability sufficient to undermine confidence in the
outcome. [Citations.] A reviewing court will indulge in a presumption that counsel’s
performance fell within the wide range of professional competence and that counsel’s
actions and inactions can be explained as a matter of sound trial strategy. Defendant thus
bears the burden of establishing constitutionally inadequate assistance of counsel.’”
(People v. Gamache (2010) 48 Cal.4th 347, 391.)
               “If the record ‘sheds no light on why counsel acted or failed to act in the
manner challenged,’ an appellate claim of ineffective assistance of counsel must be
rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless
there simply could be no satisfactory explanation.’” (People v. Ledesma, supra, 39
Cal.4th at p. 746.)
               We begin with an assessment of whether the prosecutor’s actions amounted
to misconduct. If they did not, then defense counsel’s failure to object cannot be
characterized as falling below the standard of reasonableness in the provision of legal
representation.




                                             14
              2.1 “Vouching” for Credibility of Prosecution Witness
              Defendants first assert the prosecutor engaged in misconduct because her
assertion, during her rebuttal closing argument, that Causey “was very, very credible,”
amounted to improperly “vouching” for a witness. We disagree.
              “[I]t is misconduct for prosecutors to vouch for the strength of their case by
invoking their personal prestige, reputation, or depth of experience, or the prestige or
reputation of their office, in support of it.” (People v. Huggins (2006) 38 Cal.4th 175,
206–207.) Similarly, it is misconduct “‘to suggest that evidence available to the
government, but not before the jury, corroborates the testimony of a witness.’ [Citiation.]
The vice of such remarks is that they ‘may be understood by jurors to permit them to
avoid independently assessing witness credibility and to rely on the government’s view of
the evidence.’” (People v. Bonilla (2007) 41 Cal.4th 313, 336.)
              It is also improper for prosecutor to argue credibility based on his or her
experience in that role: People v. Padilla (1995) 11 Cal.4th 891, 957, overruled on
another ground in People v. Hill (1998) 17 Cal.4th 800, 823, foot 1, [court assumed
impropriety of remark that defendant’s story was “‘one of the more transparently made-
up stories I have ever heard as a DA’”]; People v. Medina (1995) 11 Cal.4th 694, 758
[prosecutor conceded impropriety of comment that “‘no case I have ever seen’ had such
overwhelming evidence”].)
              However, these limits do not wholly preclude a prosecutor from
commenting on a witness’s credibility. “‘“[A] prosecutor is given wide latitude during
argument. The argument may be vigorous as long as it amounts to fair comment on the
evidence, which can include reasonable inferences, or deductions to be drawn
therefrom.”’” (People v. Ward (2005) 36 Cal.4th 186, 215.) “[S]o long as a prosecutor’s
assurances regarding the apparent honesty or reliability of prosecution witnesses are
based on the ‘facts of [the] record and the inferences reasonably drawn therefrom, rather
than any purported personal knowledge or belief,’ her comments cannot be characterized

                                             15
as improper vouching.” (People v. Frye (1998)18 Cal.4th 894, 971, disapproved on
another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
               In this case, the prosecutor’s statement that Causey “was very, very
credible” reflects, on its face, that the prosecutor was addressing the content of Causey’s
testimony, rather than vouching for his character in the abstract. A person doing the
latter would say Causey “is very credible.” Employing the past tense demonstrates the
prosecutor was referring not to Causey himself, but to the testimony he had offered at
trial: it was credible.

               Moreover, as the prosecutor went on to demonstrate in the course of her
rebuttal, her assertion of Causey’s credibility was based on an evaluation of the evidence
in the record, rather than any implied endorsement of his character or knowledge of facts
outside the record. After arguing it would be inappropriate for the jurors to disregard
Causey’s testimony simply because he had an admitted drug addiction, she discussed
why he would have little motive to participate in a break in of his mother’s closets, why
he would have known there was little to gain from doing so, and why his imprisonment in
the shower and closet made no sense if he were an active participant in the robbery, as
defendants had argued. And she then questioned why Causey would have even admitted
to his own participation in the drug use if he had decided to otherwise lie about what
occurred during the weekend. In short, her argument centered on what inferences the
jurors should draw about Causey’s credibility, based upon the evidence in the record.

               People v. Anderson (1990) 52 Cal.3d 453, is similar. In that case, the
defendant complained that the prosecutor had improperly vouched for the credibility of
the police officers who testified at trial when she asserted that “‘[a] law enforcement
officer is no good as a witness if his credibility is in doubt,’ and in essence supported the
credibility of the officers testifying in this case by noting that ‘a number of them . . . are
old, experienced officers. They’ve got 15, 20, 22 years of experience on the force.’ The


                                              16
prosecutor expressed her doubt that any of them would ‘jeopardize’ his reputation by
lying on the witness stand ‘just to convict one defendant.’ The prosecutor continued by
noting that defendant, on the other hand, would only be testifying once, rather than a
number of times, that he ‘doesn’t have anything else to lose,’ and ‘so what if you do
catch him in a few lies?’” (Id. at pp. 478.) The Supreme Court concluded the remarks
were not improper, because “the prosecutor limited her remarks to facts of record,
namely, the years of experience of the officers involved, and her ‘vouching’ was clearly
based on inferences reasonably drawn therefrom, rather than on her personal belief or
knowledge. [Citation.] We find no improper prosecutorial vouching here.” (Id. at
p.479.) We reach the same conclusion in this case.

              But even if we had doubts about the propriety of the prosecutor’s statement,
defendants’ claim of ineffective assistance, based on their counsels’ failure to object to it,
is ultimately unpersuasive. In order to prevail on such a claim, the defendant would also
have to show that, as a result of counsel’s ineffective assistance, he “‘suffered prejudice
to a reasonable probability, that is, a probability sufficient to undermine confidence in the
outcome.’” (People v. Gamache, supra, 48 Cal.4th at p. 391.) But in this case, the jurors
were told, clearly and repeatedly, that they alone must evaluate Causey’s credibility and
that nothing the prosecutor said could be treated as evidence in making that assessment.
We presume the jurors followed those instructions (see People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 83), and defendants have offered no argument to undermine that
presumption. We consequently reject defendants’ claim that their counsels’ failure to
object when the prosecutor argued that Causey was credible in her closing argument had
a prejudicial effect on the outcome.


              2.2 Suggesting Defendants Were Withholding Evidence From Jury




                                             17
              Defendants also contend the prosecutor committed misconduct when she
informed the jury that “[i]f it was up to the prosecution,” they would have the transcript
of a recorded interview to take with them into the jury room during deliberations.
According to defendants, the prosecutor’s comment implied that defendants were
withholding evidence from the jury. The record, however, does not support that
assertion.
              The prosecutor’s reference was to the transcript of a 90-minute interview of
Timatyos that had been conducted by police at a Starbucks coffee house. The audio
recording of that interview was played during the trial, and the trial court passed out
copies of the transcript for the jurors to review while listening. The court explained to
the jurors that it was doing so because a California court rule required that “[w]henever
the lawyers want to play a tape to the jury . . . the jury shall be given a transcript.”
              The court emphasized, however, that the transcript was merely “a tool of
convenience. So that while you are hearing the statements of the interview, you can read
along the transcript to see what these people are saying.” The court then cautioned “the
transcript may not be completely accurate” and “the real evidence is the disk itself.” The
court also told the jurors that if they wanted to review any part of the recorded statement
during deliberations, they would be provided a copy of the disk for that purpose, but the
transcript copies they were using while listening to the recording during trial would be
retrieved after the recording finished, “because that’s not really the evidence.”
              After all parties had concluded their presentations of evidence, the court
informed the jury “[y]ou have heard all the evidence you will hear in this case” and then
asked the jurors if they had any questions. One juror asked if transcripts would be
available in the jury room. The court responded, “[i]f you are referring to the transcript
of Simone Timatyos, I have to make a ruling as to whether that’s admissible or not. I will
do that this afternoon.”



                                              18
              Then, after the jury was excused, defendants objected to providing the
jurors with the transcript of Timatyos’ interview for use during deliberations, pointing out
that just as the court had explained to the jurors, only the recording itself – and not the
transcript – qualified as “evidence.” In response, the court noted that while the
transcripts of recorded statements are generally allowed into the jury room, that was
because the parties generally agree to it. However, if defendants were objecting, the
transcript would have to be disallowed in this case. The jury, however, was not privy to
this exchange.
              Based on those facts, it would be unreasonable to conclude the prosecutor’s
expression of disappointment that jurors would not have a copy of the transcript of
Timatyos’ interview in the jury room was intended to imply defendants were
“withholding evidence.” Most significant is the fact that by the time the prosecutor made
her closing argument, the jurors already knew the content of the transcript, which they
had been allowed to review while listening to the recorded interview during trial. Thus,
the prosecutor knew the jurors would not be wondering what information the prohibited
transcript might have revealed, nor would they be suspicious about why unknown
information was being kept from them. They had already seen it. Further, the prosecutor
knew the jurors had already been told by the court that (1) the transcript was not
evidence, (2) it might not be completely accurate, and (3) only the actual recording –
which they would have access to in the jury room – qualified as evidence of what had
been said during the interview. Thus, the prosecutor was not suggesting – nor could
jurors have reasonably inferred – that evidence was being withheld from them. And
finally, the prosecutor also knew the court had already informed the jurors that it was the
court itself – not the parties – that would decide whether the transcript would be admitted
into the jury room. And the jury had no way of knowing that the court’s decision to
exclude the transcript from the jury room had been based solely on defendants’ objection.



                                              19
Thus, the prosecutor’s lament cannot reasonably be understood to have pointed the finger
at defendants.
              But even if that inference were otherwise plausible in the abstract, it would
have been dispelled when the prosecutor immediately made clear that her concern about
the missing transcript was purely a practical one: she was worried it might be unduly
difficult for jurors to focus on what she believed were the important parts of the 90-
minute recorded interview, without a transcript to use as an aid in finding those parts. So
the prosecutor promised the jury she would devote time during the lunch hour to
identifying the important parts and identifying where they could be found on the
recording. Then after the lunch break she did that, telling the jury that “as far as
[Timatyos’s] interview at Starbucks, because you are not going to have the transcript
anymore . . . I’m going to try to save you time and point a couple of spots out and the
approximate time that it is said, if you want to ho[m]e in on those areas.”
              Because there is no reasonable likelihood that the prosecutor could have
intended her lament about the lack of a transcript in the jury room as a suggestion
defendants were responsible for withholding evidence – and there is also no reasonable
possibility the jury would have drawn such an inference from it – we reject defendants’
claim of prosecutorial misconduct on the basis of that statement.
              And again, our determination that the prosecutor’s statement did not
constitute misconduct means, as a matter of law, that defendants’ counsel did not provide
ineffective assistance when they neglected to object at the time the prosecutor made it.


                                       DISPOSITION


              The case is remanded to the trial court with directions to prepare amended
sentencing abstracts reflecting that the terms imposed on both defendants for false



                                             20
imprisonment are stayed pursuant to section 654 and forward a copy to the Department of
Corrections and Rehabilitation. In all other respects, the judgments are affirmed.




                                                 RYLAARSDAM, J.

WE CONCUR:



O’LEARY, P. J.



THOMPSON, J.




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