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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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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.
1
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.
2
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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People v. Paz CA4/2
Combined Opinion