Filed 11/26/14 P. v. Fernandez CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G050247

         v.                                                            (Super. Ct. No. INF1101903)

JACOBO ARANDA FERNANDEZ,                                               OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Riverside County, Ronald
L. Johnson, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
                   Russell S. Babcock, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric Swenson and Barry
Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
                                  *          *           *
              A jury convicted defendant Jacobo Aranda Fernandez of robbery (Pen.
              1
Code, § 211), burglary (§ 459), and possession of stolen property (§ 496). As to the
robbery, the jury found defendant had personally used a firearm. (§§ 1192.7, subd.
(c)(8), 12022.53, subd. (b)). The court sentenced him to a prison term of 13 years for the
robbery (including 10 years for the gun use enhancement). The court imposed a
concurrent term for the burglary, and stayed sentence for possession of stolen property.
              On appeal, defendant contends (1) the prosecutor committed misconduct,
(2) the jury committed misconduct, (3) the court erred by denying him an evidentiary
hearing on jury misconduct, and (4) the errors individually or cumulatively prejudiced
him. We affirm the judgment.


                                          FACTS


              Around 9:00 p.m. on April 23, 2011, Brandi Sedillo arrived home and
                                      2
parked her car in front of her house. Her three-year-old son was in the car’s backseat.
At the time, Sedillo was 22 years old, 5 feet tall, and weighed 120 pounds.
              A white car drove by on the other side of the street and made a U-turn. As
Sedillo leaned into the backseat to take her son from his car seat, the white car pulled up
very close to her rear bumper. Sedillo heard someone run up to her.
              Sedillo turned to see a man pointing a gun at the right side of her head. In
clear English without a foreign accent, he said, “Give me your bag.” Fearing for her life
and that of her son, Sedillo said, “No . . . please, I have my son.” When Sedillo did not
hand over her purse, the man “grabbed” it off her shoulder. Before he got back into his

1
              All statutory references are to the Penal Code unless otherwise stated.
2
              All dates refer to 2011, unless otherwise stated.

                                             2
car and sped away, she took another look at his face. The stolen purse contained her
driver’s license, an iPod, a camera, and two of her paychecks from her employer, Togo’s
Sandwiches.
              By that time, her neighbors were outside. She ran to them, and they helped
her call the police. When the officers arrived, Sedillo told them the robber was a man in
his 20’s or 30’s, about 5 feet 8 inches tall and weighed 200 pounds, wearing blue jeans, a
white T-shirt, and wraparound sunglasses. She further described him as a clean-shaven
White male, with a stocky build and a square face. He had spiked brown hair.
              Later that night, after the officers left, Sedillo remembered that her
paychecks were in the stolen purse. She told her housemate, Denise Knight, about the
missing checks. Knight was also Sedillo’s boss at Togo’s Sandwiches. Knight made
several phone calls and stopped payment on the paychecks.
              Three days later, on April 26, defendant showed up at Atoyaz Market, a
local convenience store owned by Jose Esparza. Esparza offered his customers check-
cashing services, an operation which he monitored with two surveillance cameras. He
required repeat customers to place a fingerprint on the back of cashed checks. He did not
require them to present identification. Defendant had regularly cashed checks at Atoyaz
Market for years, but went by the name of “Mario Luna.”
              This time, defendant presented two checks, payable to Brandi Sedillo, and
endorsed them in her name. Unlike his previous visits, he wore a hat with a very large,
face-obscuring brim. On this occasion, at least, defendant used his pinky finger to make
a fingerprint on the backs of the checks.
              On April 28 or 29, Esparza learned Sedillo’s paychecks had bounced.
Esparza checked the surveillance recording of the transaction and saw it was defendant
who had cashed the bad checks.
              On May 20, about 20 days after he cashed the checks, defendant returned to
Atoyaz Market. Esparza confronted him about the bad checks. At first, defendant denied

                                              3
presenting the checks. Then, after Esparza showed him the surveillance video, he
admitted cashing the checks and apologized. Instead of calling the police, Esparza
allowed defendant’s mother to pay for the bad checks. After this incident, defendant
never returned to Atoyaz Market again.
              On May 21, Sedillo went to Atoyaz Market after learning her stolen checks
had been cashed there. Esparza showed Sedillo images from a video of defendant dated
May 20, because the first video taken of defendant cashing the checks had already been
erased. Sedillo recognized the images as those of the person who had robbed her. In the
video, defendant wore the same sunglasses and T-shirt her assailant had worn on the
night of the robbery.
              On June 27, Detective Alirio Moulin was assigned the case of Sedillo’s
stolen paychecks. Upon seeing the suspect’s photo in the police report, Moulin
recognized the suspect as defendant, his former teammate from a Palms Springs
recreational soccer league. That same day, Moulin visited Sedillo at her home. He
showed her a six-pack photo lineup and asked her if she could identify the person who
had robbed her. Sedillo first identified defendant as the man who cashed the checks.
When asked to identify the person who robbed her, she observed that the robber had the
same features as defendant, but had more hair. Finally, she identified defendant as the
robber, except that he had shaved his head and grown facial hair.


                                      DISCUSSION
                                             I
                          PROSECUTORIAL MISCONDUCT
              Defendant contends the prosecutor committed many acts of misconduct.
As a threshold matter, he has not forfeited these claims on appeal. His trial counsel made
timely objections below, and any further objection or request for admonition would have
been futile. (People v. Price (1991) 1 Cal.4th 324, 447 [defendant forfeits prosecutorial

                                            4
misconduct claim unless defense objected at trial and requested admonition, or unless
admonition would not have cured harm caused by misconduct]; People v. Arias (1996) 13
Cal.4th 92, 159 [claim not forfeited if objection would be futile]; People v. Green (1980)
27 Cal.3d 1, 35, fn. 19, overruled in part on other grounds in People v. Martinez (1999)
20 Cal.4th 225, 234 [claim not forfeited if defense had no opportunity to request
admonition].)
                Prosecutorial misconduct violates the federal Constitution if it “infects the
trial with such unfairness as to make the conviction a denial of due process.” (People v.
Morales (2001) 25 Cal.4th 34, 44.) “‘Conduct by a prosecutor that does not render a
criminal trial fundamentally unfair is 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. Hill (1998) 17 Cal.4th 800, 819 (Hill).)
                “[O]nly misconduct that prejudices a defendant requires reversal [citation],
and a timely admonition from the court generally cures any harm.” (People v. Pigage
(2003) 112 Cal.App.4th 1359, 1375.) Misconduct under federal constitutional law is
reversible error unless the reviewing court finds beyond a reasonable doubt the
misconduct did not affect the verdict. (Ibid.) Misconduct under state law mandates
reversal if there is a reasonable probability a result more favorable to the defendant would
have occurred absent the error. (Ibid.)
                With these precepts in mind, we turn first to defendant’s claims the
prosecutor committed misconduct during her closing statement and rebuttal. We then
address his contentions she committed misconduct while questioning witnesses.


A. Closing Statement and Rebuttal
                Defendant contends the prosecutor, during her closing statement and
rebuttal, committed misconduct by (1) shifting the burden of proof to him, (2)



                                               5
inaccurately defining “reasonable doubt,” (3) implicitly commenting on his failure to
testify, and (4) implying he had escaped punishment for prior wrongdoing.
              A prosecutor’s improper comments during closing argument can constitute
misconduct. A prosecutor is subject to limitations on the scope of closing argument and
the method of presenting it. (5 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012)
Criminal Trial, § 758, pp. 1177-1178.) Nonetheless, “‘a prosecutor is given wide latitude
during argument’” and may make fair comment on the evidence and draw reasonable
inferences from it. (People v. Wharton (1991) 53 Cal.3d 522, 567.) But “a prosecutor
may not go beyond the evidence in his argument to the jury,” for example, by suggesting
“the existence of ‘facts’ outside the record.” (People v. Benson (1990) 52 Cal.3d 754,
794-795.)
              During rebuttal, a prosecutor’s arguments “that otherwise might be deemed
improper do not constitute misconduct if they fall within the proper limits of rebuttal to
the arguments of defense counsel.” (People v. Cunningham (2001) 25 Cal.4th 926,
1026.) For example, a prosecutor may comment on whether defense counsel’s closing
argument is persuasive. (People v. Zambrano (2007) 41 Cal.4th 1082, 1155, disapproved
on a different point by People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.)
              In determining whether a prosecutor’s comments to the jury constituted
misconduct, “‘“the question is whether there is a reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an objectionable fashion.”’”
(People v. Ayala (2000) 23 Cal.4th 225, 284.) “In conducting this inquiry, we ‘do 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,
disapproved on another point in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) In
addition, the prosecutor’s statements must be viewed “in the context of the argument as a
whole.” (People v. Dennis (1998) 17 Cal.4th 468, 522.)



                                             6
              1. The prosecutor did not shift the burden of proof.
              The court instructed the jury that the People must prove a defendant guilty
beyond a reasonable doubt. (CALCRIM No. 220.) Nonetheless, defendant contends the
prosecutor shifted the burden of proof to him by (1) in her rebuttal, arguing he produced
no evidence he did not know the checks were stolen, and (2) in her closing statement,
misstating the reasonable doubt standard of proof.
              A prosecutor shifts or lessens the People’s burden of proof if he or she
misleads or confuses the jurors about which party bears the burden. (People v. Berryman
(1993) 6 Cal.4th 1048, 1075 (Berryman), overruled on another point in Hill, supra, 17
Cal.4th at p. 823, fn. 1 [no lessening of burden of proof absent reasonable likelihood jury
construed or applied prosecutor’s “remarks in an objectionable fashion”].)
              We turn first to defendant’s contention the prosecutor shifted the burden of
proof to him by stating there was no evidence he did not know the checks were stolen.
The prosecutor made this comment in her rebuttal to defense counsel’s closing statement.
In defense counsel’s closing statement, he emphasized there was no evidence defendant
                                   3
knew Sedillo’s checks were stolen. In rebuttal, the prosecutor responded: “But there
was no evidence presented that he did not know they were stolen. All the evidence
presented was that he knew they were stolen.”
              The prosecutor’s remarks were a fair comment on the evidence and came
within the proper limits of rebuttal argument, responding, as they did, to doubts defense
counsel had tried to cast on the evidence (or lack thereof). (People v. Medina (1995) 11
Cal.4th 694, 758-759; People v. Jones (1997) 15 Cal.4th 119, 186, overruled on another
ground in Hill, supra, 17 Cal.4th at p. 823, fn. 1 [prosecutor may make “fair comments”
on defense evidence].) Immediately after making the complained-of remarks, the
prosecutor highlighted evidence showing defendant knew the checks were stolen. For
3
             This evidence (or lack thereof) was relevant to the mental state element of
burglary and possession of stolen property.

                                             7
example, he wore a sombrero to Atoyaz Market when he cashed Sedillo’s checks, and he
was identified by Sedillo as the person who stole her checks. The prosecutor urged the
jurors to consider the evidence rather than to speculate. Applying the Berryman standard,
it is not reasonably likely the jurors would have understood the prosecutor’s remarks to
mean defendant had the burden to prove he did not know the checks were stolen.
              But defendant points out the court excluded his proffered evidence of a
                                                                            4
statement he made to Esparza that he did not know the checks were stolen. He
concludes it was improper for the prosecutor to comment on the absence of such
evidence. Not so. When a trial court properly excludes a defendant’s proffered evidence,
a prosecutor may comment on the absence of such evidence. (People v. Lawley (2002)
27 Cal.4th 102, 152, 156.)
              We turn next to defendant’s contention the prosecutor lessened the People’s
burden of proof by misstating the reasonable doubt standard. In her closing statement,
the prosecutor told the jurors: “If you had a doubt, you would have to be able to
articulate it, and it has to be based on the evidence.” Defendant argues the prosecutor,
with this language, misstated the law and suggested that affirmative evidence must exist
to support a juror’s reasonable doubt.
              As the Attorney General concedes, the prosecutor’s remark was erroneous.
“[T]o the extent [a prosecutor claims] there must be some affirmative evidence
demonstrating a reasonable doubt, [he or she is] mistaken as to the law, for the jury may
simply not be persuaded by the prosecution’s evidence.” (Hill, supra, 17 Cal.4th at p.


4
              Defendant sought to introduce this evidence through Esparza’s testimony.
The court found the statement was “self-serving.” The statement did not come within
Evidence Code section 1220’s party admission exception to the hearsay rule because it
was not offered against defendant. Defendant does not contend the court abused its
discretion by excluding the evidence. (People v. Lawley, supra, 27 Cal.4th at p. 153 [trial
court’s ruling on whether statement came within hearsay exception reviewed for abuse of
discretion].)

                                             8
831.) “For a defendant to be found not guilty, it is not necessary that the evidence as a
whole prove his innocence, only that the evidence as a whole fails to prove his guilt
beyond a reasonable doubt.” (People v. Anderson (2007) 152 Cal.App.4th 919, 932.)
              But, immediately after her misstatement, the prosecutor told the jury: “But
I just want you to know, beyond a reasonable doubt is in a CALCRIM that you will have
in your jury instructions. It’s not imaginary doubt. . . . And again, it’s CALCRIM [No.]
220. And I encourage you to read that and . . . apply the facts to the law.”
              The court instructed the jury with CALCRIM No. 220 on reasonable doubt,
including that “[p]roof beyond a reasonable doubt is proof that leaves you with an
abiding conviction that the charge is true” and that the “evidence need not eliminate all
possible doubt because everything in life is open to some possible or imaginary doubt.”
The instruction also stated: “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’s
guilt beyond a reasonable doubt, he is entitled to an acquittal and you must find him not
guilty.” The court also instructed the jurors that, if they believed the attorneys’
comments on the law conflicted with the court’s instructions, the jurors were to follow
the court’s instructions. (CALCRIM No. 200.)
              In the context of the whole argument and the instructions, it is not
reasonably likely the jury misconstrued the prosecutor’s remark to require a reasonable
doubt to be based on affirmative evidence. Although the prosecutor should have
exercised more caution with her definition, she immediately and emphatically
encouraged the jury to read the court’s instruction on reasonable doubt, thus superseding
her erroneous comment. Jurors are presumed to be intelligent and capable of correctly
understanding the court’s instructions. (People v. Lewis (2001) 26 Cal.4th 334, 390;
People v. Sanchez (2001) 26 Cal.4th 834, 852.) Under the Berryman standard, the
prosecutor did not shift the burden of proof.

                                                9
               2. The prosecutor did not comment on defendant’s failure to testify.
               Defendant contends the prosecutor implicitly referred to his decision not to
testify when she commented, in rebuttal, on the absence of evidence he did not know the
checks were stolen. He argues the sole way he could introduce such evidence was by
testifying, and therefore the prosecutor’s comment invited the jury to consider his failure
to testify as evidence of his guilt.
               In Griffin v. California (1965) 380 U.S. 609 (Griffin), the Supreme Court
held that the Fifth Amendment forbids “comment by the prosecution on the accused’s
silence . . . .” (Griffin, at p. 615.) “Prosecutorial comment which draws attention to a
defendant’s exercise of his constitutional right not to testify, and which implies that the
jury should draw inferences against defendant because of his failure to testify, violates
defendant’s constitutional rights.” (People v. Murtishaw (1981) 29 Cal.3d 733, 757,
superseded by statute on another point as recognized in People v. Boyd (1985) 38 Cal.3d
762, 772-773.)
               Defendant argues the prosecutor committed Griffin error by pointing to the
lack of evidence. But Griffin’s “protection of the right to remain silent is a ‘shield,’ not a
‘sword’ that can be used to ‘cut off the prosecution’s “fair response” to the evidence or
argument of the defendant.’” (People v. Lewis (2004) 117 Cal.App.4th 246, 257.) “A
prosecutor may call attention to the defendant’s failure to present exculpatory evidence if
those comments do not call attention to the defendant’s failure to testify and are not of
such a character that the jury would naturally and necessarily take them to be a comment
on the failure to testify.” (United States v. Lopez (9th Cir. 1986) 803 F.2d 969, 973.)
Here, the prosecutor’s comments did not draw attention to defendant’s silence. Rather,
they “constituted proper comment on the evidence, and a proper comment in response to
defense counsel’s argument.” (People v. Hughes (2002) 27 Cal.4th 287, 394.) There was
no Griffin error.



                                              10
              3. The prosecutor did not imply that defendant escaped punishment for
                 earlier crimes.
              Defendant contends the prosecutor committed misconduct by characterizing
him as someone who picks on the weak, and implying he was guilty and had escaped
punishment for earlier crimes. In her closing statement, the prosecutor said, “He picks on
the weak, ladies and gentlemen. He picked on [Sedillo] because she’s a young girl out at
night. He picks on his friends, Jose Esparza, because he knows he can cash checks
through them.”
              While it is true the prosecutor characterized defendant as someone who
picks on the weak, she supported her argument wholly with evidence from the record. A
prosecutor may make fair comment on the evidence and draw reasonable inferences from
it. (People v. Wharton, supra, 53 Cal.3d at p. 567.) Here, the prosecutor sought to
highlight the differences between Sedillo, a five-foot-tall woman with a small child, and
defendant, a bigger, older man with a “real gun.” Accordingly, the prosecutor’s comment
fell within the bounds of fair argument.
              Defendant also argues the prosecutor committed misconduct by exhorting
the jury not to let defendant get away with it. In her closing statement, the prosecutor
stated, “[D]on’t let him get away with it.” Accompanying her exhortation was a power
point slide reading: “[D]on’t let him get away with it this time.” On appeal, defendant
argues the prosecutor implied it was the jury’s duty to convict him. He further argues the
prosecutor’s comment, “[D]on’t let him get away with it this time,” referenced Moulin’s
stricken testimony about defendant’s assault on the soccer referee (discussed later in this
opinion), and therefore referred to evidence off the record.
              The prosecutor began her closing statement by describing in detail how
defendant had eluded detection several times and almost got away with his crimes. We
paraphrase her comments. Defendant would have likely “gotten away with” the robbery
because Sedillo did not “see a license plate, if there was one, on the car.” But, because


                                            11
there was “no cash” in Sedillo’s purse, defendant cashed Sedillo’s paychecks under a
false name at Atoyaz Market and got “out of there” with over $400. He would “have
probably gotten away with it, too,” except that Knight had “stopped payment on the
checks . . . .” Consequently, Esparza confronted defendant at the market about the
stopped checks. Defendant “[n]ever [went] back in the store again,” because he knew the
police would be “looking for the person who robbed” Sedillo of her checks. But
defendant had the “ace in the hole going for him” that the police were “looking for Mario
Luna.” It was “almost the perfect crime.” The police could not “find Mario Luna” and
the “case was cold.” Moulin “crack[ed] the case” when he recognized the suspect’s
photo (without a sombrero) from the video and said, “That’s not Mario Luna. That’s
Jacobo.”
              Viewed in this context, the prosecutor’s final comment, “don’t let him get
away with it this time,” can be reasonably interpreted to refer to the fact the case almost
went unsolved and that, at several points in the case, defendant almost got away with his
acts. The prosecutor described defendant as a “smooth operator” who almost got away
with the perfect crime. Her exhortation could reasonably be interpreted to mean — don’t
let this elusive smooth operator, who was caught through sheer happenstance, get away
with his crimes at this stage of the case. In determining whether it is reasonably likely
the jury understood or applied the complained-of comments in an improper or erroneous
manner, “we ‘do not lightly infer’ that the jury drew the most damaging rather than the
least damaging meaning from the prosecutor’s statements.” (People v. Frye, supra, 18
Cal.4th at p. 970, disapproved on another point in People v. Doolin, supra, 45 Cal.4th at
p. 421, fn. 22.) We conclude it is not reasonably likely the jury construed or applied the
challenged remarks in an objectionable fashion.




                                             12
B. Questioning Witnesses
              Defendant contends the prosecutor, while questioning witnesses, committed
misconduct by eliciting inadmissible character evidence and by expressing her personal
opinion he was guilty.

              1. ______________________ Defendant was not prejudiced by the
                 prosecutor’s eliciting Moulin’s stricken testimony about defendant’s
                 assault on a soccer referee.
              Defendant contends Moulin’s testimony about defendant’s assault on a
soccer referee constituted inadmissible character evidence. In a pretrial motion in limine,
the prosecution sought to introduce, for impeachment purposes if defendant were to
testify, evidence of defendant’s assault on a soccer referee. The court excluded the
evidence under Evidence Code section 352.
              Subsequently, during the presentation of defendant’s case, the defense
called Moulin as a witness. During direct examination, defense counsel elicited Moulin’s
testimony that he recognized the suspect’s photo in the police report as being that of
defendant, his “former soccer mate.” In a lengthy line of questioning, defense counsel
elicited Moulin’s testimony that, from 2009 to 2010, he played on a soccer team with
defendant for 90 minutes per game on a “real” soccer field in Palm Springs. In response
to defense counsel’s questioning, Moulin described defendant as someone who was quite
fit back when they played soccer together, and specifically not overweight. Thus, the
defense sought to establish that Moulin’s description of defendant was inconsistent with
Sedillo’s description of her robber as “stocky.”
              The prosecutor then cross-examined Moulin, and asked when was the last
time he had seen defendant. Moulin replied he last saw defendant when they played
soccer on October 1, 2011, and that Moulin had to leave the game to take his wife to the
hospital to deliver their baby. The prosecutor then asked, “And you hadn’t played soccer
with him again after that”? Moulin replied, “That’s right.” The prosecutor asked, “Why

                                            13
not?” Moulin replied, “Because he was expelled from the Palm Springs soccer
competition after assaulting the referee.”
              Defense counsel objected and moved to strike the last answer. The court
ordered it stricken.
              Defendant subsequently moved for a mistrial on this basis. In opposition,
the prosecutor explained that, when she asked Moulin why he had not seen defendant in
the several months before the robbery, she had expected Moulin to say he was occupied
with his new baby. The prosecutor had been unaware of defendant “not being permitted
to play.” Although she had failed to instruct Moulin not to mention the assault, she had
instructed him to avoid mentioning the conviction after the court excluded the evidence.
The prosecutor argued that the defense opened the door by asking about soccer. She
pointed out the court immediately struck the answer, and that Moulin said nothing about
a criminal prosecution.
              The court denied defendant’s mistrial motion, explaining it had struck the
single answer and did not “think the way it was mentioned and the way it was
handled” prejudiced defendant or that it would affect the outcome of the case.
              The prosecutor’s eliciting of the lone statement, which was immediately
stricken, did not render the trial fundamentally unfair. As to whether it was misconduct
under state law, however, even giving the prosecutor the benefit of the doubt as to her
assertion she expected Moulin to testify he had not played soccer since his baby was
born, the prosecutor committed misconduct by failing to admonish Moulin not to mention
the assault and then asking a question that elicited the excluded evidence. The prosecutor
stated she instructed Moulin not to mention defendant’s conviction, but the court’s ruling
on the motion in limine excluded evidence of the assault.
              Nonetheless, it is not reasonably likely defendant would have received a
more favorable result absent Moulin’s mention of the assault. The court immediately
sustained defense counsel’s objection and struck the testimony. The court later instructed

                                             14
the jury to disregard and not to consider for any purpose any stricken testimony.
(CALCRIM No. 222.) Jurors are presumed to be capable of correctly understanding and
following the court’s instructions. (People v. Lewis, supra, 26 Cal.4th at p. 390; People
v. Sanchez, supra, 26 Cal.4th at p. 852.)

              2. ______________________ Defendant has waived his contention the
                 prosecutor expressed a
                  personal belief he was guilty.
              Defendant argues the prosecutor expressed a personal belief he was guilty
by suggesting during redirect examination that Sedillo would not want to get up and stare
her robber in the face. He has waived this argument, however, by failing to support it
with any legal authority. (Cal. Rules of Court, rule 8.204(a)(1)(B); People v. Stanley
(1995) 10 Cal.4th 764, 793.)
              Defendant also argues the prosecutor expressed a personal belief he was
guilty by referring to him as a “robber” during direct examination of Sedillo. He
provides no record references, however, as required by California Rules of Court,
rule 8.204(a)(1)(C). We therefore deem the contention to be waived. (Nwosu v. Uba
(2004) 122 Cal.App.4th 1229, 1246.)


                                             II
                                  JURY MISCONDUCT
A. Defendant’s New Trial Motion and the People’s Opposition
              Defendant moved the court for a new trial on grounds, inter alia, of jury
misconduct. Defendant’s new trial motion asserted that, several days after the verdict,
defense counsel ran into Juror No. 4 at an Office Max store. In their “brief meeting,”
Juror No. 4 told defense counsel the jurors discussed defendant’s failure to testify during
their deliberations. Defense counsel drafted a declaration for Juror No. 4 — which Juror
No. 4 reviewed, edited, and signed — and then attached the declaration as an exhibit to

                                            15
defendant’s new trial motion. Juror No. 4’s declaration stated, inter alia, that the jurors
discussed why defendant did not testify and said they wanted to hear defendant testify to
see if he had an accent, and that Juror No. 4 told the other jurors that “the defense did not
allow [defendant] to testify so that [the] jurors would not learn more about his earlier
crimes,” as had been “hinted” at in Moulin’s testimony, and so as not to contradict the
defense’s claim defendant spoke with an accent.
              The People opposed defendant’s new trial motion. They asserted that parts
of Juror No. 4’s original declaration invaded the jurors’ thought processes and/or were
hearsay, and were therefore inadmissible. The People conceded that the jurors committed
misconduct when they mentioned defendant’s failure to testify, but argued the jurors’
                                      5
conduct did not prejudice defendant.
              The People attached a new declaration from Juror No. 4 to their opposition.
The opposition described the process by which the People obtained the new declaration
from Juror No. 4. When contacted by the People’s investigator, Juror No. 4 “indicated he
absolutely wanted [to] talk to the prosecution to ‘clean up this mess.’” Juror No. 4 said
the statements in his original declaration “were not completely accurate.” The prosecutor
drafted a new declaration based on her discussion with Juror No. 4. Juror No. 4 and the
prosecutor went over the declaration many times together “until it accurately and
completely stated [Juror No. 4’s] feelings and beliefs.”
              Juror No. 4’s new declaration included the following statements. “During
deliberations, the subject of the defendant not testifying came up in the context of
whether or not he had an accent.” “The discussion regarding this was transitory and

5
                On appeal, the Attorney General partially retracts this concession by
arguing that, as to whether defendant spoke with an accent, the jurors did not discuss his
failure to testify from a testimonial standpoint, but rather as a comment about his refusal
to provide the equivalent of a voice exemplar. Nonetheless, the Attorney General
concedes the alleged discussion about defendant hiding his criminal record “went to
actual testimonial matters.”

                                             16
lasted less than a minute.” “It was raised momentarily and no one commented again.”
“The only reference to him testifying or not was that it would show whether he had an
accent or not, it was not to the issue of his guilt or innocence.” Juror No. 4 did not say
defendant “did not testify because the defense did not want to contradict its claim that he
spoke with an accent”; Juror No. 4’s first declaration (prepared by defense counsel) was
inaccurate in this respect. Juror No. 4 did not “discuss with the jurors anything Officer
Moulin said about a possible criminal record” of defendant; Juror No. 4’s first declaration
(prepared by defense counsel) was inaccurate in this respect. Juror No. 4’s discussion
with defense counsel “was to try to discuss with him what [the] weaknesses were of his
presentation, because he asked me.” Defense counsel first wrote a declaration for Juror
No. 4 which “was inaccurate in many respects.” Juror No. 4 “asked him to re-write it”
and then “skimmed” the revised declaration before signing it. Juror No. 4 “said, Well, I
guess this is close enough for government work.” Juror No. 4 “did not read it in detail.
[He] did not know until [he] was leaving [defense counsel’s] home what it would be used
for.” Juror No. 4 had read the new declaration (prepared by the prosecutor) “carefully
                                                         6
and it is accurate to what [he] feel[s] and think[s].”
              In their opposition, the People argued that no further juror conduct (such as
through an evidentiary hearing) was warranted as Juror No. 4 had clearly provided all the
information he could on the matter, no evidentiary dispute existed, and no evidence
demonstrated a strong possibility of prejudicial juror misconduct.




6
              Defendant contends paragraphs 8 to 12 and 20 to 22 of Juror No. 4’s
second declaration are inadmissible because they refer to the jurors’ subjective thoughts.
(Evid. Code, § 1150, subd. (a).) Our independent determination that defendant was not
prejudiced by the jury misconduct is not based, in whole or in part, on those paragraphs.
Nor does this opinion’s description of Juror No. 4’s second declaration include any of
those paragraphs.

                                              17
B. The Jury’s Discussion of Defendant’s Failure to Testify was not Prejudicial
              Defendant contends the court prejudicially erred by denying his motion for
a new trial based on jury misconduct.
              “A defendant accused of a crime has a constitutional right to a trial by
unbiased, impartial jurors.” (People v. Nesler (1997) 16 Cal.4th 561, 578.) “An
impartial juror is someone ‘capable and willing to decide the case solely on the evidence’
presented at trial.” (Id. at p. 581.) Thus, a juror commits misconduct by prejudging a
case. (People v. Leonard (2007) 40 Cal.4th 1370, 1412.) A “verdict will only be set
aside if there appears to be a substantial likelihood of juror bias.” (People v. Loker
(2008) 44 Cal.4th 691, 747.)
              It is generally misconduct for a jury to discuss a defendant’s failure to
testify. (People v. Loker, supra, 44 Cal.4th at p. 749.) Such misconduct creates a
presumption of prejudice which may be rebutted by a finding that there is no substantial
likelihood the complaining party suffered actual harm. (Ibid.) “Whether prejudice arose
from juror misconduct is a mixed question of law and fact. We review legal issues
independently, and accept the trial court’s factual findings if they are supported by
substantial evidence.” (Id. at p. 747.)
              Here, the court found the jury mentioned defendant’s failure to testify
merely “in passing.” That factual finding is supported by substantial evidence contained
in Juror No. 4’s second declaration.
              Although the jury did commit misconduct by discussing defendant’s failure
to testify, our independent review satisfies us that defendant was not prejudiced by such
misconduct. This “was not a discussion of any length or significance.” (People v. Hord
(1993) 15 Cal.App.4th 711, 728.) Juror No. 4 described the discussion of defendant’s
failure to testify as “transitory,” lasting “less than a minute,” and further stated it “was
raised momentarily and no one commented again.” In his second declaration, he denied
discussing anything Moulin said about defendant’s possible criminal record, and declared


                                              18
his first declaration was inaccurate in this respect. Thus, the focus of the jury’s
discussion was on whether defendant spoke English with an accent. It is not substantially
likely defendant suffered any actual harm from the jurors’ brief discussion of their
inability to hear whether he had an accent since he did not testify. “Transitory comments
of wonderment and curiosity, although misconduct, are normally innocuous, particularly
when a comment stands alone without any further discussion.” (Hord, at pp. 727-728.)

C. The Court did not Abuse its Discretion by Denying Defendant’s Request for an
   Evidentiary Hearing to Question Jurors
              Defendant contends the court improperly denied his request for an
evidentiary hearing to question Juror No. 4 and the other jurors. The court denied any
additional discovery as to any other jurors, finding there was “no basis to go any further”
and that the “transitory discussion” was in “passing” and “in no way affected the
judgment of the jury.”
              In People v. Hedgecock (1990) 51 Cal.3d 395, 415, our Supreme Court held
that “when a criminal defendant moves for a new trial based on allegations of jury
misconduct, the trial court has discretion to conduct an evidentiary hearing to determine
the truth of the allegations.” But our Supreme Court cautioned that “the defendant is not
entitled to such a hearing as a matter of right. Rather, such a hearing should be held only
when the trial court, in its discretion, concludes that an evidentiary hearing is necessary to
resolve material, disputed issues of fact.” (Ibid.) Hedgecock emphasized that, “when
considering evidence regarding the jurors’ deliberations, a trial court must take great care
not to overstep the boundaries set forth in Evidence Code section 1150,” which bars
consideration of jurors’ mental processes in the course of their deliberations. (Id. at pp.
418-419.)




                                             19
              On appeal, a trial court’s decision not to hold an evidentiary hearing when a
defendant alleges jury misconduct is reviewed for an abuse of discretion. (People v.
Hayes (1999) 21 Cal.4th 1211, 1252, 1256.)
              We find no abuse of discretion in the court’s decision not to hold an
evidentiary hearing. Juror No. 4’s second declaration characterized the discussion about
defendant’s failure to testify as “transitory,” and denied that he discussed defendant’s
possible criminal record. The court obviously credited Juror No. 4’s second declaration
and found the transitory discussion about defendant’s failure to testify did not affect the
jury’s judgment. The court found “no basis to go any further” — in other words, no
material factual conflict in the evidence. The court did not abuse its discretion by
denying defendant’s request for an evidentiary hearing.


                                             III
                                 CUMULATIVE ERROR
              In his final contention, defendant asserts the cumulative effect of the errors
requires reversal of his convictions. (Cooper v. Fitzharris (9th Cir. 1978) 586 F.2d 1325,
1333 (en banc) [“prejudice may result from the cumulative impact of multiple
deficiencies”].) But there were only three errors. One was the jury’s misconduct in
discussing his failure to testify, and we have independently determined he was not
prejudiced by the jury’s brief discussion. Another error was the prosecutor’s misstating
the reasonable doubt standard, which we have independently determined did not
prejudice defendant. The third error was the prosecutor’s failure to instruct Moulin not to
mention defendant’s assault on the referee and then eliciting Moulin’s testimony on the
subject, which we independently determined was not prejudicial. Even aggregating the
effects of Moulin’s testimony, the prosecutor’s misstatement, and the jury’s discussion,
defendant was not prejudiced under any standard. The evidence against him was
overwhelming, whereas the jury’s discussion was transitory, Moulin’s testimony was

                                             20
stricken, and the prosecutor negated her misstatement by urging the jurors to focus on the
court’s instruction on reasonable doubt.


                                     DISPOSITION


             The judgment is affirmed.




                                                IKOLA, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



THOMPSON, J.




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