Filed 8/26/14 P. v. Paz CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058819

v.                                                                       (Super.Ct.No. FVI1202427)

JUAN CARLOS PAZ,                                                         OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Jules E. Fleuret,

Judge. Affirmed.

         Thomas K. Macomber, under appointment by the Court of Appeal, for Defendant

and Appellant.

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

Anthony DaSilva and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and

Respondent.




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       A jury convicted defendant and appellant Juan Carlos Paz of one count of false

imprisonment using violence. (Pen. Code,1 § 236.) The trial court found true the special

allegations that defendant was convicted of two serious or violent felonies within the

meaning of the “Three Strikes” law (§ 667, subds. (b)-(i)), and also found true that he had

served three prison terms (§ 667.5, subd. (b) [one-year enhancement]). Defendant was

sentenced to state prison with an aggregate term of eight years.

       Defendant contends on appeal that the prosecutor committed prejudicial

misconduct by arguing on rebuttal that the jurors were charged with determining whether

a crime was committed in their community, which was an appeal to the passions or

prejudices of the jury. We find no reversible error, and affirm the judgment.

                                              I.

                        FACTS AND PROCEDURAL HISTORY

            a. Evidence At trial

       Defendant was a tenant in the victim’s home. On the morning of May 14, 2011,

defendant was in his bedroom, and the victim was at home in another part of the house.

Defendant heard someone knock at the front door, and after opening the door, discovered

two unknown men standing there. The men told the victim that they were looking for

defendant. The victim turned around to walk toward defendant’s room to let him know

that he had visitors. As the victim turned around, the men entered the house behind him,

struck the back of the victim’s head, and the victim fell to the ground.

       1   All further statutory references are to the Penal Code, unless otherwise noted.


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       At some point, defendant left his room, came up to the victim and punched the

victim in the stomach several times. One of the men told the victim to stop charging

defendant rent. Defendant discharged a Taser device against the victim’s neck. The

victim fell to the floor. Although defendant disputed participating in the attack, at trial,

the victim identified defendant as having done so.

       While the victim was on the floor, defendant used plastic zip-ties to bind the

victim’s wrists together behind his back, and his ankles together. The victim did not own

or have plastic zip-ties in his home at that time. He lost consciousness at some point.

When the victim regained consciousness, he observed the men carrying some of

defendant’s clothes out of the home. He saw the men shut the front door and lock it, and

later exit the home through the garage. After they exited the home, the victim knocked a

telephone to the floor and called 911 with his tongue. Police officers arrived at the

victim’s home and after documenting his condition as they found him, they untied him.

The victim had bruises to the right eye, head, neck, and chest.

       By the time of trial, defendant had changed his appearance from the way it was on

the date of the incident. Specifically, defendant had grown long hair and a long beard.

The victim had not seen or heard from defendant between the day of the incident until the

preliminary hearing. There was a discrepancy in the record about how much, if any, rent

defendant had paid the victim prior to the date of the incident. There was also a

discrepancy in the victim’s description and identification of the two men other than

defendant who participated with defendant in the beating.



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          b. Jury Instructions and Closing Argument

       Prior to the presentation of evidence, the jury received instructions from the court

regarding trial procedure, evidence, and the import of argument from counsel.

Specifically, the jury was instructed that the verdict was to be based solely on the

evidence presented during the trial and the law given by the judge. Jurors were to keep

an open mind during the trial, and to not be influenced by bias, sympathy, prejudice, or

public opinion. They were instructed regarding the requirement for conviction that there

be proof beyond a reasonable doubt. The court explained that the jury was to consider

only evidence, and that the argument of counsel was not evidence.

       Following the closing of evidence but before closing arguments from counsel, the

trial court again instructed the jury and gave them the law regarding the counts alleged

against defendant. Jurors were instructed to avoid bias, to follow the court’s instructions,

and to impartially decide the case based upon the evidence. The court again explained

what evidence was, and stated that attorney arguments are not evidence.

       The prosecutor then began closing argument. The prosecutor explained to the jury

that it was his burden to convince 12 people that a crime happened in their community.

He explained the role of the jury, including that they decide the facts with integrity. After

a discussion of the evidence to support the specific counts alleged, the prosecutor also

reiterated that the jury was to focus on the evidence, and noted that argument of counsel

was not evidence. He indicated that the jury alone was to evaluate the credibility of

witnesses. He discussed the requirement of the beyond reasonable doubt standard for



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criminal convictions. The prosecutor then argued that the evidence supported a verdict of

guilty as to the counts alleged.

       In the defendant’s closing argument, defendant argued that there were credibility

issues with the victim’s testimony, specifically as to inconsistent statements about

whether defendant had paid rent, descriptions of the other men who participated in the

attack on the victim, and how the incident occurred, among other issues.

       The sole comment that defendant contends was misconduct was made during

rebuttal. The prosecutor began with a response to the defendant’s central theme that the

victim was lying about the attack. In support of his argument, the prosecutor referred to

the victim’s testimony that the two men who had come to the house and initiated the

attack had asked for defendant directly. When defendant came out of his room he pulled

out zip ties, tied the victim up, and Tased him. There were visible signs on the victim’s

face of the beating when the police arrived.

       The prosecutor then argued:

       “The—when we were going through jury selection, one of the things—one of the

analogies I used, I referred to some of you as having children, if you have children and

the cookies, and if you have cookie crumbs leading to their room. Essentially what

we’ve heard in terms of the defense in this case is we’re going to blame the person who

made the cookies. How about blame that person because they made cookies. We’re

going to blame [the victim] because he’s the only one we can blame. But we have

crumbs. We have crumbs leading all the way across the table to that man, leading across



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the table to Juan Carlos Paz. Okay? That’s the evidence of this crime in addition to what

you heard. Okay? This is leading us directly to that man. We’re not going to blame the

man who was tied up and beaten in his own home. We need to hold him accountable.

You, as members of this community charged with determining whether a crime was

committed in your community, must make the determination—

       “[DEFENSE COUNSEL]: I object. The prosecutor is trying to play to the

passions of the jury by referencing their community.

       “THE COURT: Overruled.

       “[DEFENSE COUNSEL]: It’s improper argument.

       “THE COURT: Overruled.

       “[PROSECUTOR:]—are going to be asked to make that determination. Okay? It

happened here, you live here.”

       Defendant contends that this argument was prosecutorial misconduct under both

the federal and state standards.

                                                II.

                                        DISCUSSION

       Defendant argues that the prosecutor committed reversible error by referencing

during closing argument in the guilt phase that the jury constituted members of the

community charged with determining whether a crime was committed in their

community. Defendant contends that “by exhorting the jury to hold [defendant]

accountable because they lived in the community where the crime occurred, the



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prosecutor appealed to the self interests of the jury as members of the public.” Defendant

posits that “the prosecutor’s argument was not an appeal to restore law and order to a city

block [as was in People v. Adanandus (2007) 157 Cal.App.4th 496], but instead it was a

direct appeal to the jurors to ‘hold him accountable,’ because what he did occurred in

‘your [the jury’s] community.’”

       The state and federal standards for review of prosecutorial misconduct are well

defined. “A prosecutor’s misconduct violates the Fourteenth Amendment to the United

States Constitution when it ‘infects the trial with such unfairness as to make the

conviction a denial of due process.’” (People v. Tully (2012) 54 Cal.4th 952, 1009

(Tully).) There is a violation of California law if a prosecutor’s misconduct involves the

use of deceptive or reprehensible methods to attempt to persuade either the court or the

jury. (Id. at pp. 1009-1010.) An objection must be raised and an admonition sought for

the issue to be preserved on appeal. (Id. at p. 1010.)

       California courts address the question of prosecutorial misconduct in argument

before the jury as follows: “‘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. Cole (2004) 33 Cal.4th 1158, 1202-1203 (Cole).) Prosecutors are

given wide latitude during argument to make vigorous but fair comment on the evidence,

and reasonable inferences or deductions to be drawn from them. (People v. Gamache

(2010) 48 Cal.4th 347, 371.) Commentary on the role of the jury, including

acknowledgement of the onerous task faced in applying the law is not improper



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argument. (People v. Cornwell (2005) 37 Cal.4th 50, 92, overruled on other grounds in

People v. Doolin (2009) 45 Cal.4th 390, 421.) Emphasis that evidence of guilt is

overwhelming, and that a jury made up of members of the community should not be

distracted by irrelevant circumstances or arguments, is also not improper. (People v.

Redd (2010) 48 Cal.4th 691, 743-744.)

       We review de novo a defendant’s claim of prosecutorial misconduct. (People v.

Uribe (2011) 199 Cal.App.4th 836, 860.) “‘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. Brown (2003) 31 Cal.4th 518, 553-554

(Brown).) We consider the prosecutor’s remarks in context of the entire record. (People

v. San Nicolas (2004) 34 Cal.4th 614, 665-666.) We presume, in the absence of evidence

to the contrary, that the jury understands and follows instructions from the trial court.

(People v. Fauber (1992) 2 Cal.4th 792, 823.) We presume that jurors treat the court’s

instructions as statements of law, and the arguments of the prosecutor as words spoken by

an advocate in an attempt to persuade. (People v. Thornton (2007) 41 Cal.4th 391, 441.)

       Defendant preserved the issue as to the language at issue for appellate review.

(People v. Chatman (2006) 38 Cal.4th 344, 380.) While he did not seek an admonition,

such an effort would have been futile as the court had overruled his objection. (Ibid.)

       Defendant’s contention takes the comments out of the immediate context as well

as the context of the entire record, and thereby mischaracterizes the prosecutor’s closing

argument. Defendant’s contention ignores what preceded the remark at issue:



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defendant’s argument that the victim himself was lying about or responsible for the

attack. The prosecutor’s argument was a response that there was evidence of guilt

beyond a reasonable doubt as to the charged offense: “Essentially what we’ve heard in

terms of the defense in this case is . . . blame [the victim]. . . . But we have [evidence]

leading . . . to [defendant]. . . . That’s the [circumstantial] evidence of this crime in

addition to [the testimony] you heard . . . leading us directly to [defendant]. We’re not

going to blame the [victim]. We need to hold [defendant] accountable. You, as the

members of this community charged with determining whether a crime was committed in

your community, must make the determination.”

       The prosecutor’s argument was not an improper appeal to the self interest, or to

the passions or prejudice of the jury, but instead a reminder of their duty as members of

their community serving as jurors to follow the chain of evidence that led to the

defendant. Thus, in the context of the evidence presented, jury instructions given, and

whole argument of both counsel, the prosecutor’s remark was a fair comment on the state

of the evidence. There was no reasonable likelihood that the jury applied the comment in

an improper or erroneous manner, and thus no prosecutorial misconduct under the state

standard. (Cole, supra, 33 Cal.4th at pp. 1202-1203; Brown, supra, 31 Cal.4th at

pp. 553-554.) Nor did the comment so infect the trial with unfairness as to be a denial of

defendant’s right to due process, and there was no prosecutorial misconduct under the

federal standard. (Tully, supra, 54 Cal.4th at pp. 1009-1010.) Prior to the offending

comment, the jury heard the prosecutor restate that the jury’s decision had to be based on



                                               9
evidence and that counsel’s arguments were not evidence, and heard the judge instruct

them to the same effect. We presume that they understood these instructions, and

distinguished evidence from argument. (People v. Fauber, supra, 2 Cal.4th at p. 823; see

also, People v. Thornton, supra, 41 Cal.4th at p. 441.)

       Moreover, prosecutorial misconduct does not require reversal unless it subjects the

defendant to prejudice. (People v. Warren (1988) 45 Cal.3d 471, 480.) “[I]n the absence

of prejudice to the fairness of a trial, prosecutor misconduct will not trigger reversal.”

(People v. Bolton (1979) 23 Cal.3d 208, 214.) We find the conduct complained of did

not cause prejudice under any harmless-error standard. (See People v. Zambrano (2004)

124 Cal.App.4th 228, 243 [Fourth Dist., Div. Two] [reasonable probability standard];

People v. Cook (2006) 39 Cal.4th 566, 608 [harmless beyond a reasonable doubt standard

for claim of error of federal constitutional dimension].) As discussed, ante, the context

and instructions to the jury minimized any impact that an appeal to community self-

interest by the prosecutor might have had. Therefore, defendant cannot show prejudice.




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                                       III.

                                   DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLSIHED IN OFFICIAL REPORTS




                                                 RAMIREZ
                                                           P. J.


We concur:


KING
                         J.


CODRINGTON
                         J.




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