The People v. Dixon CA4/1

Filed 8/30/13 P. v. Dixon CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D061943

Plaintiff and Respondent,

v. (Super. Ct. No. SCD236479)

TADECE DWAINE DIXON et al.,

Defendants and Appellants.

APPEALS from judgments of the Superior Court of San Diego County,

Richard S. Whitney, Judge. Judgments affirmed.

Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and

Appellant Tadece Dwaine Dixon.

Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and

Appellant Nickalos Demond Gray.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Laura A. Glennon,

Deputy Attorneys General, for Plaintiff and Respondent.
 A jury found Tadece Dwaine Dixon guilty of carjacking and Nickalos Demond Gray

(together with Dixon, the defendants) guilty of carjacking and possession of a deadly

weapon (metal knuckles). The jury also found true allegations that Dixon personally used a

firearm in the commission of the offense and Gray was vicariously liable for the firearm use.

The defendants complain the trial court erred in excluding third party culpability evidence

and the prosecutor committed prejudicial misconduct by arguing facts not in evidence.

Dixon also complains that the trial court erred by instructing the jury with CALCRIM

No. 361 regarding a defendant's failure to explain or deny evidence. Lastly, the defendants

argue the cumulative effect of the errors requires reversal.

FACTUAL AND PROCEDURAL BACKGROUND

On September 8, 2011, there was a widespread power outage in San Diego. That

night, the defendants and Oscar Evans went to Karcamel Ashlock's and Sean Spicer's home

in southeast San Diego. Evans recalled that Dixon was wearing a hat, shorts and a blue

shirt. The defendants left Ashlock's and Spicer's home together shortly before 10:00 p.m.

while Evans stayed behind.

Around 10:30 p.m., Victor Garcia sat in his parked Honda vehicle while he used the

vehicle to charge his cell phone. The car was parked in front of Garcia's home, which was

approximately half a mile away from Ashlock's and Spicer's home. An African-American

man, later identified as Dixon, approached Garcia and told him to give up the car. Dixon

revealed a gun and cocked it.

As Garcia got out of his car, Dixon pointed the gun at him and told him to leave the

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keys in the car. Garcia put his hands up in the air with his cell phone still in one hand and

told Dixon he would not give up the phone. Dixon directed Garcia to the sidewalk and told

him to lie facing down. Garcia complied but then turned over to look at Dixon and noticed

he was wearing a dark colored t-shirt, shorts and a baseball cap with a "L.A." emblem on it.

Garcia looked at Dixon for 10 to 15 seconds.

When Garcia was lying on the ground, he heard a second man opening the driver's

side door of his car. The second man got into the car and said, "[L]et's roll." Garcia did not

see the second man but believed he was African-American based on his "accent." At that

point, Dixon put the gun away and got into the passenger side of the car. Garcia saw the car

take off and then he called 911.

The police utilized the LoJack recovery system in Garcia's vehicle and located the

Honda around 11:16 p.m. in Chula Vista. Officers set up a perimeter around the unoccupied

parked vehicle. After the vehicle became occupied, officers followed it and initiated a

traffic stop. There were three people in the car when officers stopped it. Gray was driving,

Dixon was in the front passenger seat, and Evans was in the backseat.

When Gray pulled the car over, Dixon got out and started running. One of the

officers chased Dixon, but then fell down some stairs. That officer recovered a handgun at

the top of the stairwell where he had chased Dixon. Other officers located Dixon and

detained him. When he was taken into custody, Dixon was wearing a dark colored shirt,

baseball cap and shorts.

An officer transported Garcia to Chula Vista to identify the suspects. During a

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curbside lineup, Garcia identified Dixon as the person who pointed a gun at him. Garcia

also told officers that Dixon's hat was the same as the one on the person who carjacked him,

but Dixon was wearing it sideways during the lineup instead of straight as it was during the

carjacking. Thus, officers turned Dixon's hat. Officers also asked Garcia to identify Gray

and Evans, but Garcia was unable to do so.

Officers found brass knuckles in Gray's pocket and his backpack in the backseat of

the Honda. Gray told officers he received the keys to the Honda from a person named "L.,"

who was at the home of Tyra Jones, his child's mother. Gray claimed "L." was Jones's

roommate's brother. However, Jones testified that on the day of the incident, she did not

have a roommate and did not know "L."

Defense

Dixon testified on his own behalf. He stated he did not carjack Garcia. According to

Dixon, he did not leave Ashlock's and Spicer's home with Gray. Instead, he walked by

himself to a liquor store. When Dixon was leaving the liquor store, he saw Gray in a

Honda. Dixon asked Gray whose car he was driving and Gray responded that it was a

friend's car. Dixon got into the car and the two men returned to Ashlock's and Spicer's

home. Before he got out of the car, Dixon saw a hat that matched his shirt in the backseat.

At some point, Dixon went back to the car and put the hat on. Dixon stayed at Ashlock's

and Spicer's home for approximately 10 to 20 minutes and then left with Gray and Evans to

go to Chula Vista.

While they were on the way to Chula Vista, Dixon noticed a gun under his seat and

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passed it to Evans in the backseat. When Evans returned the gun, Dixon wiped it clean and

put it back on the floor. Dixon testified he ran when officers stopped the vehicle because he

knew about the gun in the car and that made him nervous.

DISCUSSION

I. Third Party Culpability Evidence

A. Background

During trial, Gray's counsel sought to introduce evidence of two incidents a few days

after the carjacking where Garcia observed African-American men staring at him near his

home. The defendants argued the evidence was relevant to third party culpability. The

court held an Evidence Code section 402 hearing with Garcia. (Undesignated statutory

references are to the Evidence Code.)

Garcia testified that three days after the carjacking, he was walking his dog near his

home when he observed an African-American man walking down his street. The man

turned to walk away from Garcia but looked back at him at least 10 times. The man stopped

at the end of the street, looked down to the dirt, turned around to stare at Garcia, and then

shot what Garcia believed was a firearm into the ground. The man went over a fence and

stared at Garcia until Garcia walked back to his house. Garcia thought it was possible that

the man was staring because Garcia was also staring at him.

A few days later, Garcia saw the same man walking with another African-American

man near Garcia's home. The two African-American men were talking and joking until they

saw Garcia. At that point, the men became silent, made eye contact with Garcia, had a brief

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conversation, and then continued walking. Garcia was worried because his vehicle

registration and insurance information with his name and address were still missing.

After considering the evidence and counsels' arguments, the trial court concluded that

although it "believe[d] the defense should be able to use just about any and all evidence to

support a defense in this case[,]" the proffered evidence was inadmissible because it was

speculative and irrelevant.

B. Analysis

The defendants argue the trial court violated their due process rights to a fair trial and

to present a complete defense by excluding third party culpability evidence. We reject the

defendants' contention.

A defendant has a right to present evidence of third party culpability if that evidence

could raise a reasonable doubt about his guilt. (People v. Hall (1986) 41 Cal.3d 826, 833

(Hall).) "[E]vidence of mere motive or opportunity to commit the crime in another person,

without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there

must be direct or circumstantial evidence linking the third person to the actual perpetration

of the crime." (Ibid.) Further, "[e]vidence that another person . . . had some 'remote'

connection to the victim or crime scene, is not sufficient to raise the requisite reasonable

doubt." (People v. DePriest (2007) 42 Cal.4th 1, 43.)

The court treats third party culpability evidence "like any other evidence." (Hall,

supra, 41 Cal.3d at p. 834.) The evidence is admissible if relevant (§ 350), unless its

probative value is substantially outweighed by the risk of undue delay, prejudice, or

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confusion of the jury. (§ 352; Hall, at p. 834.) A trial court's determination of whether to

admit third party culpability evidence will not be disturbed on appeal absent an abuse of

discretion. (People v. Lewis (2001) 26 Cal.4th 334, 372.)

Here, the defendants did not present any direct or circumstantial evidence linking

the African-American men Garcia saw a few days after the carjacking to the actual

perpetration of the crime. Although Garcia may have felt intimidated by the men, he also

stated he was "on edge" after being carjacked and his fear does not connect the men to the

crime. Moreover, the fact that the African-American men were in Garcia's neighborhood,

looked at him multiple times, and possibly had a gun does not link them to the carjacking.

The men did not approach Garcia or say anything to him. The evidence was speculative and

any connection to the crime was too tenuous to raise a reasonable doubt about the

defendants' guilt.

In light of our conclusion that the trial court did not abuse its discretion in

determining that the proffered evidence was irrelevant, it necessarily follows that the court

did not violate the defendants' constitutional rights by excluding the evidence. (See People

v. Babbitt (1988) 45 Cal.3d 660, 685 ["because defendant's evidence failed to meet the

threshold requirement of relevance, its exclusion pursuant to section 352 did not implicate

any due process concerns"]; accord People v. Adams (2004) 115 Cal.App.4th 243, 254

[rejecting claim that exclusion of "totally irrelevant" third party culpability evidence

violated defendant's constitutional right to due process and constitutional right to present a

defense].)

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 II. Alleged Prosecutorial Misconduct

The defendants argue the prosecutor committed nine instances of prejudicial

misconduct during closing argument by arguing facts not in evidence.

A. General Legal Principles

Prosecutorial misconduct exists " '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. Earp (1999) 20 Cal.4th 826, 858.) Further, a defendant's federal due process

rights are violated when prosecutor's improper remarks " ' " 'infect[] the trial with unfairness,'

" ' " making it fundamentally unfair. (Ibid.) A showing of bad faith on the part of the

prosecutor is not required to establish misconduct. (People v. Hill (1998) 17 Cal.4th 800,

822 (Hill).)

"Although prosecutors have wide latitude to draw inferences from the evidence

presented at trial, mischaracterizing the evidence is misconduct." (Hill, supra, 17 Cal.4th at

p. 823.) Additionally, " 'statements of facts not in evidence by the prosecuting attorney in

[her] argument to the jury constitute misconduct.' " (People v. Adcox (1988) 47 Cal.3d 207,

236.)

To preserve a claim of prosecutorial misconduct, a defendant must timely object and

request a curative admonition unless an admonition would not have cured the harm caused

by the misconduct. (People v. Hinton (2006) 37 Cal.4th 839, 863; People v. Earp, supra, 20

Cal.4th at p. 858.) Therefore, to avoid forfeiture of a claim of prosecutorial misconduct, a

defendant generally "must make a timely objection, make known the basis of his objection,

and ask the trial court to admonish the jury." (People v. Brown (2003) 31 Cal.4th 518, 553.)

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Further, "in 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.) " '[I]n cases where jurors

are improperly exposed to certain factual matters, the error is usually tested under the

standard set out in People v. Watson (1956) 46 Cal.2d 818, 836' . . . ." (People v. Bordelon

(2008) 162 Cal.App.4th 1311, 1323–1324.)

B. Prosecutor's Statements

With the foregoing principles in mind, we now turn to a discussion of each of the

statements during the prosecutor's closing argument that the defendants contend amount to

prosecutorial misconduct.

1. Prosecutor's Statement about a Black Jacket Found in the Vehicle

During trial, a detective testified that when the Honda was stopped, he processed the

vehicle and collected evidence. He found a black jacket in the trunk that did not belong to

Garcia. The detective, however, did not inquire as to whether the jacket belonged to any of

the three individuals in the car or request a DNA analysis of the jacket.

During closing argument, the prosecutor stated, "How do we know this black jacket

doesn't belong to defendant Gray? He's got all his other property inside the car. He's got his

life inside this backpack, which is in the backseat of [Garcia's] carjacked car. How do we

know this jacket doesn't belong to him too? He was never asked by Detective Smith.

Defendant Dixon was never asked by Detective Smith. Again, why? Because the victim

said the guy with the gun was wearing either a blue or black shirt, not a jacket."

Dixon's counsel objected on the basis that the argument misstated the evidence. The

trial court sustained the objection.

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 The defendants argue the prosecutor's statement was prejudicial because the black

jacket was not shown to belong to anyone in the car and thus was exculpatory evidence

suggesting a third party was involved in the carjacking. The defendants also assert the trial

court failed to admonish the jury to consider the evidence rather than counsel's argument.

The Attorney General contends any error was cured because the trial court sustained defense

counsel's objection and reference to the jacket was harmless because it was irrelevant.

Initially, we note that although defense counsel objected to the prosecutor's

statement, the defendants did not request the court admonish the jury. In order to avoid

forfeiture, the defendants were required to object and request an admonition. (People v.

Brown, supra, 31 Cal.4th at p. 553.) We nevertheless conclude that to the extent the

prosecutor's statement could be considered misconduct, the defendants were not prejudiced

by the error.

The court sustained defense counsel's objection and instructed the jury that nothing

the attorneys said during closing argument was evidence (CALCRIM No. 222). Moreover,

earlier in the prosecutor's closing argument, the trial court sustained another objection based

on misstatement of facts and at that point admonished the jury that it must "[k]eep in mind

the attorneys are arguing what they believe the evidence has shown. If there's a conflict

between the argument and the evidence, you are to rely on the official record to show what

the evidence is. And [the court] will instruct you, if need be, you can have the record read

back to you during deliberations. It's argument as to what they believe the evidence has

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shown. The argument itself is not evidence. And, again, you always rely on the official

record to make a determination what the evidence is." Under these circumstances, we

conclude the defendants were not prejudiced by the prosecutor's statement.

2. Prosecutor's Statement about the Timing of Events

The prosecutor argued, "It is not reasonable, it's not a reasonable conclusion, not at

all. That 10 minutes would be enough time for somebody else to take that car from . . .

Garcia at gunpoint, go over to . . . Jones'[s] complex, go inside . . . Jones'[s] apartment

kicking it with Gray, and Gray happens to get a call my buddy is in Chula Vista, I'm going

to go visit him, can I borrow your car?" Defense counsel objected on the basis that the

prosecutor was stating facts not in evidence. The trial court sustained the objection and

informed the jury that "[a]gain, you are going to rely on the evidence, if need be the record,

we'll show you what the evidence is."

The defendants contend the prosecutor committed misconduct by arguing their story

was unreasonable because it gave the alleged third party carjacker only 10 minutes to take

Garcia's car, arrive at Jones's house, and then give the keys to the car to Gray. The

defendants assert the prosecutor distorted the timeline of events because the evidence

showed the carjacker had more than 25 minutes. Although we agree that the prosecutor

mischaracterized the evidence, the error was not prejudicial in light of defense counsel's

objection, the court's immediate admonition to the jury and the instruction to not consider

counsel's argument as evidence (CALCRIM No. 222).

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 3. Prosecutor's Statement about Gray's Accent

During closing argument, the prosecutor stated, "Defendant Gray has the same accent

that the person who aided and abetted the guy with the gun had back on the night of the

blackout." Defense counsel objected on the basis that there were not facts in evidence "as to

whether the accents are the same." The trial court overruled the objection.

The defendants argue the prosecutor's statement was improper because there was no

evidence that Gray's accent was the same as one of the carjackers and there is no authority

for the proposition that an "African-American accent" exists. The Attorney General argues

there was evidence regarding Gray's "accent."

While the prosecutor's choice of words may not have been ideal, prosecutors have

wide latitude to draw inferences from the evidence. (Hill, supra, 17 Cal.4th at p. 823.)

Based on the evidence, it was not unreasonable for the prosecutor to comment on what the

prosecutor and witnesses termed an "accent." Garcia testified he believed the second man

involved in the carjacking was African-American based on his "accent." Officer Lopez,

who searched Gray on the night of the incident, testified that Gray had a "slang-type of

accent" that he had heard before in the "African-American community." Officer Lopez

clarified, he "wouldn't say specifically an African-American accent, but [Gray's accent] does

fall in line with the African-American community that [he] deal[s] with on a regular basis in

southeast San Diego."

Based on the foregoing, we conclude the prosecutor did not commit misconduct by

commenting on Gray's "African-American accent."

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 4. Prosecutor's Statement about Dixon's Hat

When discussing the hat Dixon claimed he put on after finding it in the vehicle, the

prosecutor argued, "[The hat] matches the blue shirt and his white polo shorts. So he just

happens to put on the hat, the same hat the victim ID's the carjacker was wearing." Defense

counsel objected and the trial court sustained the objection.

The defendants contend the prosecutor committed misconduct by arguing Dixon

wore the same hat as the person responsible for the carjacking. However, there was

evidence to support the prosecutor's statement. Most notably, Garcia identified the hat

Dixon was wearing when he was detained as the same hat worn by the carjacker. In any

event, even if the prosecutor's statement was incorrect, the error was cured when the court

sustained defense counsel's objection. Although the trial court did not admonish the jury in

this instance to not consider the prosecutor's argument as evidence and the defendants did

not request such an admonition, the court had previously advised the jury on multiple

occasions and instructed the jury with CALCRIM No. 222 in this regard.

5. Prosecutor's Statement about Jones's Meetings with Investigators

The prosecutor argued, "If [Jones] knew she had to talk to [the District Attorney

Investigator], she wouldn't have talked to him. Again, this is closer to the crime. This is

before she's had an opportunity to meet with defense investigators and go over the story.

This is before she has an opportunity to hear from the defense investigator, hey why did you

meet with the DA investigator?" Defense counsel objected on the basis of facts not in

evidence and the court sustained the objection.

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 The defendants argue the prosecutor committed misconduct by implying that the

defense investigators improperly tried to influence Jones's testimony. The Attorney General

admits there was no evidence that defense investigators asked Jones why she met with the

district attorney's investigator, but contends any error was cured when the trial court

sustained defense counsel's objection and the prosecutor's statement was not prejudicial.

Preliminarily, we note that it appears from the record that the prosecutor meant Jones

would not have spoken with the district attorney's investigator if she knew she had no

obligation to do so. With this understanding of the prosecutor's statement, we conclude any

error was harmless. The trial court sustained defense counsel's objection and although it did

not admonish the jury to disregard the prosecutor's statement, it had previously done so

based on the same objection and instructed the jury that the prosecutor's argument was not

evidence (CALCRIM No. 222). Lastly, we conclude it is not reasonably probable that the

jury believed defense investigators attempted to influence Jones to testify untruthfully based

on the prosecutor's statement as there was no evidence in that regard and we presume the

jury followed the court's instruction to rely on the evidence. (People v. Nguyen (1995) 40

Cal.App.4th 28, 36–37.)

6. Prosecutor's Statement about Ashlock's Testimony

The prosecutor argued, "Again, [Ashlock] says that . . . [the defendants] leave around

9:58 together. She has no reason to lie and say they left together when they didn't. She said

she was outside at the barbeque. She was hanging out, getting the barbeque ready. They

were in chairs. I think she was actually on the staircase." Defense counsel objected on the

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basis of facts not in evidence. The trial court sustained the objection.

The defendants argue there was no evidence that Ashlock was on the staircase and

thus the prosecutor misstated the vantage point, if any, from which Ashlock saw the

defendants leave her home. We disagree with the defendants' contention. On direct

examination, Ashlock testified that the defendants left her home together at 9:58 p.m. When

the prosecutor asked what she, Spicer and Evans did at that point, Ashlock responded by

stating they were eating and had barbecued in front of her stairway. During cross-

examination, Dixon's counsel attempted to clarify Ashlock's testimony about where she was

when the defendants left her house:

"Q I was curious what you were doing at the time that [the
defendants] left at 9:58 p.m.?

"A I was sitting on the stairs.

"Q Okay. So you weren't inside preparing the food?

"A No.

"Q Okay.

"A I was . . . Yeah . . ."

Based on the foregoing, there is some evidence that Ashlock may have been on the

staircase when the defendants left her home. In any event, we conclude any error was not

prejudicial. The alleged misconduct was cured because the court sustained defense

counsel's objection, had previously admonished the jury that counsel's arguments were not

evidence and provided an instruction to the jury in the same regard.

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 7. Prosecutor's Statement about the Length of Time Garcia Looked at Dixon

The prosecutor stated, "The most important thing [Garcia] did do was spend a lot of

time looking at defendant Dixon the night of the crime, at least 30 seconds to take a look at

him." Defense counsel objected and the trial court sustained the objection.

The Attorney General concedes that there was no evidence that Garcia looked at

Dixon for at least 30 seconds. Instead, the evidence showed that Garcia looked at Dixon for

10 to 15 seconds.

We conclude the prosecutor's statement was not prejudicial. Again, the trial court

sustained defense counsel's objection. Moreover, Garcia testified he purposely turned to

look at Dixon and was able to see Dixon's entire face. On the night of the crime, Garcia

identified Dixon as the person who pointed a gun at him. Dixon expressed no doubt about

his identification. Based on this evidence, it is not reasonably probable that the defendants

would have obtained a more favorable result in the absence of the prosecutor's

misstatement.

8. Prosecutor's Statement about the District Attorney's Efforts to Locate "L."

The prosecutor argued, "L., no one knows L. There was no way to find L. The

District Attorney Investigator tried to locate L." Defense counsel objected, stating the facts

were not in evidence. The trial court sustained the objection and reminded the jury to

"[k]eep in mind you're going to rely on the evidence not the arguments as to what the

evidence is."

The defendants argue there was no evidence to support the prosecutor's statement that

the district attorney attempted to locate "L." and, in making that statement, the prosecutor

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undermined their third party culpability defense. The Attorney General argues the error was

cured because the court sustained the defense's objection and admonished the jury.

We agree with the Attorney General. In this instance, the trial court immediately

advised the jury that it should rely on the evidence and not counsel's argument.

Additionally, the trial court instructed the jury with CALCRIM No. 222, providing that

closing arguments are not evidence and the jury should decide the case solely based on the

evidence presented at trial. Any harm flowing from the prosecutor's statement was thereby

cured.

9. Prosecutor's Statement about Evans's Testimony

During closing argument, the prosecutor argued about Evans's testimony concerning

Dixon's hat:

"[Prosecutor]: Evans . . . said, Gray and Dixon left walking
together, left together. [Ashlock] said the same thing. . . . Both return
in mystery car. Gun still in car. Gun wiped clean by Dixon, but he still
flees with it, risking his own life, wearing L.A. hat despite . . . Evans'[s]
sworn testimony saying none of his friends would wear an L.A. hat.

"[Dixon's counsel]: Objection. Facts not in evidence. Misstates
the testimony.

"[The Court]: Overruled.

"[Prosecutor]: I think he even said he wouldn't let an L.A. hat in
his house.

"[Dixon's counsel]: Objection. Facts not in evidence. Misstates
the testimony.

"[The Court]: Overruled."

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 Although the defendants appear to take issue with the prosecutor's statements

concerning what Evans said about the L.A. hat, they fail to explain the basis for their

argument. In any event, based on our review of the record, we conclude the prosecutor's

statements did not constitute misconduct.

Evans testified that on the day of the crime, Dixon was not wearing a hat with a L.A.

emblem on it. In explaining how he knew it was not a L.A. hat, Evans claimed, "We

wouldn't wear a L.A. hat. [Dixon is] not from L.A. and neither am I, neither are my

friends." Evans went on to state that "[n]o one under [his] roof owned a L.A. hat."

A prosecutor is entitled to make a " ' " 'fair comment on the evidence, which can

include reasonable inferences, or deductions to be drawn therefrom' " ' " (Hill, supra, 17

Cal.4th at p. 819) and "to assert [her] interpretation of what the evidence showed" (People v.

Navarette (2003) 30 Cal.4th 458, 513). It was a fair comment and a reasonable

interpretation of the evidence for the prosecutor in this case to argue that Evans stated none

of his friends would wear a L.A. hat and he wouldn't allow a L.A. hat in his house.

Moreover, even if the prosecutor misstated Evans's testimony, the misstatement did not

render the trial unfair.

Although we have concluded that the prosecutor did not commit any prejudicial

misconduct in her closing argument, we feel compelled to note that we certainly do not

condone her presentation because it involved more than mere inadvertent misstatements of

the evidence. Rather, the prosecutor's closing argument misstated the evidence on multiple

occasions. We urge the prosecutor to be more accurate and circumspect in her closing

argument and statement of the evidence.

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 III. Alleged Instructional Error

The trial court instructed the jury with CALCRIM No. 361, which provided the

following: "If defendant, . . . Dixon, failed in his testimony to explain or deny evidence

against him, and if he could reasonably be expected to have done so based on what he knew,

you may consider his failure to explain or deny in evaluating that evidence. Any such

failure is not enough by itself to prove guilt. The People must still prove the defendant

guilty beyond a reasonable doubt. [¶] If defendant, . . . Dixon, failed to explain or deny, it

is up to you to decide the meaning and importance of that failure."

Dixon contends the trial court erred in instructing the jury with CALCRIM No. 361

because he did not fail to explain or deny any adverse evidence. Error in giving this

instruction requires reversal only if it is reasonably probable a more favorable verdict would

have resulted had the instruction not been given. (See People v. Saddler (1979) 24 Cal.3d

671, 683; People v. Lamer (2003) 110 Cal.App.4th 1463, 1471–1472 (Lamer).) We

conclude that even if the instruction was improper, it was not prejudicial.

CALCRIM No. 361 informs the jury that the defendant's failure to explain or deny

incriminating facts "may" be used to evaluate the defendant's testimony if the jury finds the

defendant failed to explain or deny the evidence and if the defendant "could reasonably be

expected to have done so based on what [he] knew . . . ." The instruction also states that it

remains the jury's task to determine "the meaning and importance" of any omission in

defendant's testimony. The trial court further instructed the jury that not all the instructions

were necessarily applicable, and advised jurors to follow the instructions that applied to the

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facts determined by them (CALCRIM No. 200).

Under these instructions, we must assume the jury disregarded CALCRIM No. 361 if

there was no evidence that Dixon failed to explain or deny. Thus, Dixon suffered no

prejudice from the giving of the instruction. (See Lamer, supra, 110 Cal.App.4th at p. 1472;

see also People v. Yeoman (2003) 31 Cal.4th 93, 139 [jury presumed to understand and

follow instructions].) Because the instruction permits, but does not require, the jury to

consider an inference under certain circumstances, courts "routinely" find an error in giving

the instruction was harmless. (Lamer, at p. 1472.)

Dixon contends the error was prejudicial in this case because the instruction

"encourage[d] [the jury] to distrust the credibility of [his] defense and his . . . testimony and

to more favorably view the credibility of the prosecution's evidence." However, no

reasonable juror would interpret the instruction to mean the court was suggesting the jury

should distrust Dixon and favor the prosecution. This is especially true where, as here, the

court informed the jury that it "must impartially compare and consider all the evidence that

was received throughout the entire trial" (CALCRIM No. 220, italics added.) and it should

not disregard testimony "because of prejudice or a desire to favor one side or the other"

(CALCRIM No. 302).

Dixon also contends he would have received a more favorable result if the instruction

was not given because Garcia's identification of him was questionable. We are not

convinced. Although Garcia identified Gray as the carjacker with the gun at the preliminary

hearing, he explained the mistake at trial. Garcia stated he was panicked, it was his first

20
time testifying and he did not have much time to look at the man he was asked to identify.

Garcia realized his mistake and contacted the District Attorney's office after the preliminary

hearing to inform them of the mistake. Notably, Garcia positively identified Dixon on the

night of the crime and at trial. He stated there was no doubt in his mind that Dixon was the

man who pulled a gun on him. There was also other significant identification evidence

which connected Dixon to the crime. Specifically, when Dixon was detained, he was

wearing clothing similar to that described by Garcia and Evans.

Based on the evidence, it is not reasonably probable that Dixon would have obtained

a more favorable result if the trial court did not instruct the jury with CALCRIM No. 361.

IV. Cumulative Error

The defendants argue the cumulative effect of the prosecutor's alleged misconduct

combined with the trial court's alleged errors in excluding third party culpability evidence

and instructing the jury with CALCRIM No. 361 warrant reversal.

We concluded the trial court did not abuse its discretion in excluding the proffered

third party culpability evidence (ante, part I). We further concluded even if certain

statements in the prosecutor's argument constituted misconduct, they were not prejudicial

(ante, part II). Similarly, we found that even if the court erred by instructing the jury with

CALCRIM No. 361, the error was not prejudicial (ante, part III). For the same reasons, we

conclude that if the alleged prosecutorial misconduct and instructional error are viewed

cumulatively, they are not unduly prejudicial and it is not reasonably probable

that the defendants would have obtained a more favorable result had they not occurred.

(People v. Watson, supra, 46 Cal.2d at p. 836; People v. Holt (1984) 37 Cal.3d 436, 458.)

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 DISPOSITION

The judgments are affirmed.

MCINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

O'ROURKE, J.

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