Filed 11/20/13 P. v. Todek CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B245788
                                                                            (Super. Ct. No. 1411264)
     Plaintiff and Respondent,                                               (Santa Barbara County)

v.

JESSE DANIEL TODEK,

     Defendant and Appellant.



                   Jesse Daniel Todek appeals the judgment following his conviction by jury
of second degree robbery (Pen. Code, §§ 211, 213, subd. (a)(2)).1 Appellant waived jury
on the prior prison term allegation (§ 667.5, subd. (b)), which the trial court found to be
true. The court sentenced appellant to six years in state prison, comprised of five years
for the conviction and one year for the prior prison term enhancement. It also ordered
him to pay a $10,000 restitution fine (§ 1202.4, subd. (b)), and imposed and stayed a
$10,000 parole revocation fine (§ 1202.45). Appellant was granted 185 days of
presentence credit.
                   Appellant correctly asserts the prosecutor erred by suggesting during
closing argument that the defense bore the burden of proof. Any harm, however, was




         1 All statutory references are to the Penal Code.
cured by defense counsel's prompt objection and the trial court's subsequent admonition
to the jury. We affirm.
                                          FACTS
              On May 24, 2012, at approximately 11:00 p.m., Joel Ochoa started walking
home from his girlfriend's house in Lompoc. A short while later, he was approached by
appellant and another man, who were carrying beers and staggering. Appellant said
something in English, which Ochoa thought was a request for cigarettes. A native
Spanish speaker, Ochoa knew "some" English, mostly common words. Ochoa handed
appellant a pack of cigarettes, which appellant struck out of his hand. Still speaking in
English, appellant asked Ochoa, "Where are you from?" Believing he was asked if he
was in a gang, Ochoa responded that he "was a paisa," meaning he was not affiliated with
a gang.
              Appellant demanded money, saying in English, "Where's the money, fool?"
After Ochoa refused to give him money, appellant hit him and threw him to the ground.
When appellant was unable to find Ochoa's wallet, he made a motion that Ochoa
interpreted as reaching for a weapon. Fearing for his life, Ochoa handed over his wallet,
which contained over $100 in cash and two keys. Appellant and his companion ran
away.
              Ochoa called the police on his cell phone. Based on Ochoa's description,
the police found appellant a few blocks away. Ochoa identified appellant as his attacker
and also identified certain items in appellant's possession, including the pack of
cigarettes, keys and a $100 bill. Ochoa suffered scrapes on his arm and leg, consistent
with the described attack.
              Appellant presented no evidence on his behalf.
                                      DISCUSSION
              Appellant contends his conviction must be reversed because the prosecutor
committed prejudicial misconduct. We disagree.
              During her closing argument, appellant's trial counsel contended appellant
was guilty of theft, but not robbery. She argued that Ochoa was confused and scared by

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two intoxicated men speaking to him in English, and that he voluntarily gave them his
wallet when they asked only for cigarettes and a lighter. Counsel further argued that
Ochoa's injuries were inconsistent with an assault.
              In rebuttal, the prosecutor reviewed the evidence supporting the
prosecution's theory. He then stated: "All of her [defense counsel's] statements, all of
her defenses, all her arguments are totally unreasonable and totally unsupported by the
evidence. [¶] The People have a burden of proof, and that's proof beyond a reasonable
doubt, and we met that burden. But if you want to actually believe the garbage that she
just put up in front of you, hold her to that same burden, because the evidence doesn't
support --" The trial court sustained defense counsel's immediate objection. At
appellant's request, the court admonished the jury: "Again, ladies and gentlemen, it is the
People's burden to prove the elements of the charges beyond a reasonable doubt. The
defense has no burden. It is not the defense's burden to prove the defendant is not guilty.
It is the People's burden to prove the defendant is guilty beyond a reasonable doubt."
              The People concede "it is improper for the prosecutor to misstate the law
generally [citation], and particularly to attempt to absolve the prosecution from its prima
facie obligation to overcome reasonable doubt on all elements [citation]." (People v.
Marshall (1996) 13 Cal.4th 799, 831; People v. Weaver (2012) 53 Cal.4th 1056, 1077;
see People v. Bradford (1997) 15 Cal.4th 1229, 1340 ["A distinction clearly exists
between the permissible comment that a defendant has not produced any evidence, and
on the other hand an improper statement that a defendant has a duty or burden to produce
evidence, or a duty or burden to prove his or her innocence"].) Here, the prosecutor
improperly advised the jury to "hold" the defense to the same burden of proof as the
prosecution. Even if we assume this was prosecutorial misconduct, reversal is not
required unless the defendant was prejudiced by the misconduct. (People v. Fernandez
(2013) 216 Cal.App.4th 540, 564.) Prejudice occurs only if it is reasonably probable the
defendant would have obtained a more favorable result absent the misconduct. (People v.
Tully (2012) 54 Cal.4th 952, 1010; People v. Crew (2003) 31 Cal.4th 822, 839.)


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              By promptly admonishing the jury as to the correct burden of proof, the
trial court cured any harm caused by the prosecutor's error. (See People v. Friend (2009)
47 Cal.4th 1, 80 [although prosecutor's comment constituted error, trial court's
admonition cured any prejudice to defendant]; People v. Olivencia (1988) 204
Cal.App.3d 1391, 1404 [court's admonition cured misconduct because jurors are
presumed to follow court's admonitions].) Moreover, the evidence against appellant was
compelling. Shortly after the attack, appellant was apprehended and identified. He was
in possession of the victim's property. Thus, it is not reasonably probable that appellant
would have obtained a more favorable result absent the error. (See People v. Tully,
supra, 54 Cal.4th at p. 1010; People v. Crew, supra, 31 Cal.4th at p. 839.)
              The judgment is affirmed.
              NOT TO BE PUBLISHED.


                                          PERREN, J.


We concur:



              GILBERT, P. J.



              YEGAN, J.




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                                  Patricia Kelly, Judge

                        Superior Court County of Santa Barbara

                           ______________________________

             Stephen K. Dunkle, under appointment by the Court of Appeal, for
Defendant and Appellant.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B.
Wilson, Supervising Deputy Attorney General, Jonathan J. Kline, Deputy Attorney
General, for Plaintiff and Respondent.




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