People v. Zapata CA1/3

Filed 9/17/15 P. v. Zapata CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,
A139209
v.
BERNARDO SANCHEZ ZAPATA, (Contra Costa County
Super. Ct. No. 51220763)
Defendant and Appellant.

This is an appeal from judgment after a jury convicted defendant Bernardo
Sanchez Zapata of second degree robbery (three counts), false imprisonment by force
(one count), and attempted carjacking (one count), with enhancements as to each count
for personal use of a deadly weapon (to wit, a knife). Defendant challenges the judgment
on grounds that include ineffective assistance of counsel, failure to instruct the jury on
voluntary intoxication, prosecutorial misconduct, cumulative error and sentencing error.
For reasons set forth below, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND
On December 18, 2012, a criminal information was filed charging defendant with
the following: second degree robbery (counts one, four and five) (Pen. Code,
§§ 211/212.5), attempted carjacking (count two) (Pen. Code, §§ 215/664), and false
imprisonment by force (count three) (Pen. Code, §§ 236/237, subd. (a)), with an

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enhancement alleged for each count for personal use of a knife within the meaning of
Penal Code section 12022, subdivision (b)(1)).1
Trial began in May 2013, at which the following evidence was presented.

I. Counts Four and Five.
At about midnight on May 27, 2012, Korina Carpenter (Carpenter) and Anjelika
Johnson Alfaro (Johnson Alfaro) were walking home on Virginia Lane in Concord. They
noticed a man, later identified as defendant, on the sidewalk in front of them slashing
tires on parked cars with a knife. Defendant was wearing jeans and a baggy, dark
sweatshirt. Carpenter moved to the middle of the street to avoid him, while Johnson
Alfaro continued walking on the sidewalk. Defendant approached Johnson Alfaro,
asking where she was from and “who do you roll with?” Defendant then waved his knife
at Johnson Alfaro and asked what she had with her. When Johnson Alfaro responded that
she had nothing, defendant grabbed her purse from her arm. She noticed that he had a
small moustache and spoke with a Spanish accent.2
Defendant then approached Carpenter and said in a heavy Spanish accent: “Give
me your shit” (or something similar). Carpenter described defendant as shaved with a
fade haircut and sunglasses. When defendant pointed his knife at her stomach, Carpenter
ripped off her necklace and gave it to him. Defendant then demanded her cell phone
charger, which she also gave to him. At this point, a car approached and stopped.
Defendant opened the car door and brandished his knife, causing the driver to speed
away. Defendant also ran away, and the women went to a nearby McDonalds to call 911.
Carpenter and Johnson Alfaro were interviewed by the police at McDonalds.
They were also taken to a show-up with three men that police officers had stopped in a
truck near the McDonalds. Carpenter told the police that one man resembled the robber,

1
Unless otherwise stated, all statutory citations herein are to the Penal Code.
2
At trial, Johnson Alfaro could not remember how defendant’s hair was cut,
however her memory was refreshed when she was read her police statement, in which she
described his haircut as a fade.

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but that she was not sure. Johnson Alfaro stated that none of the men resembled the
robber.
A second show-up was later held the same night, at which defendant was
presented to the women. Carpenter told the police that she was “just about certain”
defendant was the robber, while Johnson Alfaro stated that “it looked like him.”
At defendant’s preliminary hearing in December 2012, Carpenter testified that she
was not sure if defendant was the robber, explaining “because at night it was kind of,
like, a blur.” She noted that she only saw his face for three to five seconds on the dark
street. She further explained that her attention was more focused on the robber’s knife
than his face. She did not notice anything in particular about the robber’s teeth.
At trial, Johnson Alfaro testified that defendant “looked like” the robber, except
that the robber wore sunglasses during the robbery. When shown defendant’s booking
photograph, she then stated with 100 percent certainty that defendant was the man who
robbed her.

II. Counts One, Two, and Three.
Between 11:30 p.m. and midnight on May 27, 2012, Mayra Martinez parked her
car near her apartment building on Virginia Lane in Concord, and was walking toward
her apartment. Defendant confronted her with a knife, demanding money. Martinez told
defendant she had none, so he instead demanded her car keys and cell phone, grabbing
them from her hands. Defendant told Martinez to stay put, while he took her keys and
attempted to open a nearby car that was not hers. When the door would not open,
defendant returned the keys to Martinez and told her to show him her car. Martinez
complied, and defendant told her to get into the passenger seat. Defendant then grabbed
Martinez from behind. She told him he could take her car, but that she did not want to go
with him. Defendant, however, got behind her with the knife and held it about an inch
from her stomach, telling her to get into the car. Martinez unlocked the passenger door,
slid over to the driver’s seat, locked the vehicle and drove away as defendant banged on
the window. As she drove off, defendant punctured her driver’s side rear tire with his
knife.

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 During this time, Jessica Diaz, one of Martinez’s neighbors, could hear her
screams for help. Diaz went to a window, where she witnessed much of the incident,
although she could not see defendant’s face or whether he was armed. Diaz later
described the robber to police as Hispanic, about five feet, ten inches tall, and wearing a
black hoodie with tan shorts. However, Diaz acknowledged to the officers that she could
not make a clear identification because the robber had been wearing a hood during the
incident.
Martinez, who drove to her boyfriend’s house immediately after the incident,
returned home a short while later, where she was interviewed by the police. She was then
taken to a show-up with three men at a nearby McDonalds. She told police that none of
the men resembled the person who robbed her.
Later the same night, Martinez was talking to police officers back at her apartment
building when she saw defendant walking up the stairs with two others. She immediately
identified defendant to the officers. She confirmed that, although defendant had changed
clothes (and was now wearing a white sweatshirt with colors), she was nonetheless sure
he was the robber. The officers thus ordered defendant to stop; however, he continued on
to a nearby apartment. Eventually, the officers brought defendant out of the apartment, at
which time he was wearing a white tank top. The police then conducted another show-up
at McDonalds, during which Martinez again identified defendant as the robber.

III. Defendant’s Police Interview.
After waiving his Miranda rights, defendant denied committing any crimes.
Defendant told police that he had been at a family gathering on Jenkinson Drive before
returning to his own apartment on Monument Boulevard with his father-in-law.
Defendant then drove with his father-in-law to a friend’s apartment on Virginia Lane,
where he was arrested. Defendant told Detective Daniel Smith that he had been wearing
sunglasses earlier in the night, but had misplaced them. Defendant accused another man,
Ricardo Sanchez, of robbing Carpenter and Johnson Alfaro. He also said Sanchez had
asked him for a ride to 1411 Monument Boulevard. Detective Smith later described

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defendant as smelling strongly of alcohol and being so intoxicated that he cried
throughout much of the interview. The detective also noted defendant had stained teeth.
Following an investigation, police were unable to locate “Ricardo Sanchez” or any
of the stolen property.

IV. The Verdicts, Sentencing and Appeal.
On May 16, 2013, the jury convicted defendant on all counts and found true the
enhancements for personal use of a knife. On June 26, 2013, the trial court sentenced
defendant to a total term of seven years, eight months in prison. Specifically, the trial
court imposed the middle three-year term on count one with an additional one-year term
for the enhancement; one-half the middle term on count two with an additional one-year
term for the enhancement; a consecutive eight-month term on count three (1/3 the two-
year middle term) with an additional four-month term for the enhancement (1/3 the one-
year middle term); and one-year terms on counts four and five (1/3 the three-year middle
term) with additional four-month terms for the enhancements (1/3 the one-year middle
term). The court then stayed imposition of the sentence on count two pursuant to section
654. This appeal followed.

DISCUSSION
Defendant raises the following issues on appeal. First, defendant contends he
received ineffective assistance of counsel because his attorney failed to ask the court to
appoint an expert witness on eyewitness identifications. Second, defendant contends the
trial court erred by failing to sua sponte instruct the jury on his defense of voluntary
intoxication. Alternatively, defendant contends that, even if the trial court did not have
this sua sponte duty, his attorney provided him ineffective assistance by failing to request
instruction on voluntary intoxication. Third, defendant contends the prosecutor
committed prejudicial misconduct by vouching for witnesses and referencing his failure
to testify on his own behalf in front of the jury. Fourth, defendant contends that
cumulative errors at trial requires reversal. Lastly, defendant contends the trial court
erred by declining to apply section 654 to stay imposition of his sentence on count three,

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false imprisonment by force, and the associated enhancement for personal use of a knife.
We address each claim in turn below.

I. Ineffective Assistance of Counsel.
Defendant contends his constitutional rights to due process and effective
assistance of counsel were violated by his attorney’s failure to ask the court to appoint an
expert witness on eyewitness identifications to challenge his identification by the victims
as the perpetrator of the charged crimes. (U.S. Const., 6th Am., 14th Am.) The
governing law is not in dispute.
To prevail on a claim of ineffective assistance of counsel, the defendant must
prove more than a failure by counsel to undertake a particular strategy or investigation.
Rather, “defendant must show counsel’s performance fell below a standard of reasonable
competence, and that prejudice resulted.” (People v. Anderson (2001) 25 Cal.4th 543,
569.) In meeting this standard, the defendant must overcome a strong presumption that
counsel’s conduct was sound trial strategy or otherwise within the wide range of
reasonable professional assistance. (People v. Burnett (1999) 71 Cal.App.4th 151, 180;
People v. Bunyard (1988) 45 Cal.3d 1189, 1215.) Moreover, “prejudice” in this context
occurs only where defense counsel’s deficient performance “ ‘so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.’ ” (People v. Kipp (1998) 18 Cal.4th 349, 366, quoting Strickland
v. Washington (1984) 466 U.S. 668, 686.) If “a defendant has failed to show that the
challenged actions of counsel were prejudicial, a reviewing court may reject the claim on
that ground without determining whether counsel’s performance was deficient.” (People
v. Kipp, supra, 18 Cal.4th at p. 366.)
Applying these principles to the facts at hand, we conclude defendant’s challenge
to his attorney’s performance fails on two grounds – to wit, he has failed to prove either
deficient professional performance or resulting prejudice.
With respect to the quality of defense counsel’s representation, we first note that
the decision to call a particular witness – including an expert witness in the area of
psychological factors impacting eyewitness identifications – is generally a discretionary

6
matter rather than a legal requirement. (See, e.g., People v. Lewis and Oliver (2006) 39
Cal.4th 970, 995 [“Expert testimony on the psychological factors affecting eyewitness
identification is often unnecessary”]; People v. McDonald (1984) 37 Cal.3d 351, 377
[whether to admit or exclude expert testimony on psychological factors impacting
eyewitness identification “remains primarily a matter within the trial court’s discretion”],
overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 914.) And,
here, significantly, we do not know why defense counsel failed to seek appointment of
such an expert, given that she was never asked. As such, the law requires us to affirm on
this ground unless there simply is no reasonable explanation for her conduct. (People v.
Maury (2003) 30 Cal.4th 342, 389.) The record in this case reflects otherwise.
Generally speaking, expert testimony is admissible where the area of expertise is
“sufficiently beyond common experience” that such testimony would assist the trier of
fact. (Evid. Code, § 801; People v. McDonald, supra, 37 Cal.3d at p. 373.) As already
noted, expert testimony in the area of psychological factors impacting eyewitness
identification is not necessarily called for in many cases. And, here, defendant identifies
nothing specific to his case that would uniquely require such expert testimony. For all
we know (which is little or nothing), defense counsel may have consulted with such an
expert and decided his or her testimony was not required in this case. (See People v. Datt
(2010) 185 Cal.App.4th 942, 953 [concluding that, where “defendant has failed to
establish that his trial counsel failed to consult an expert or that such an expert would
have been able to provide favorable testimony, he has not shown that his trial counsel
was deficient in failing to present expert eyewitness identification testimony”].)
It is true, of course, that the defense focused on the theory that the three
eyewitnesses misidentified defendant as the perpetrator of the crimes. However, defense
counsel spent a quite significant amount of time at trial, both in cross-examination and
summation, drawing the jury’s attention to numerous factors sufficient to undermine the
eyewitnesses’ identifications. Specifically, defense counsel elicited from the victim
eyewitnesses (and, in particular, from Johnson Alfaro and Carpenter) that they harbored
some degree of doubt as to whether defendant was the perpetrator given the fact that their

7
interaction with the perpetrator was brief, it was dark during the robbery, and the
perpetrator wore dark sunglasses. In addition, the victims were distracted during the
incident by the perpetrator’s knife. As defense counsel noted in her closing argument,
Carpenter initially identified another person as the perpetrator before “flip-flopping” after
being shown defendant.3 Defense counsel then highlighted the general facts that
“[e]yewitness identification is unreliable” and “the single greatest cause of wrongful
convictions.” She also discussed the multitude of factors that “affect accurate perception
and memory,” such as a witness’s age and sophistication, whether the crime was violent
in nature, and the lighting at the crime scene. Finally, defense counsel argued that,
where, as here, a weapon is involved, “the focus is going to be on the knife and not on the
person,” – to wit, the very subject that defendant contends on appeal that an expert
witness would have addressed.
In addition to these arguments from defense counsel, we point out that the
psychological factors impacting eyewitness identifications are also the subject of a jury
instruction, CALCRIM No. 315, which was given to the jury in this case. This
instruction advised jurors to consider before accepting or rejecting an eyewitness
identification factors such as lighting, the duration of the encounter, the distance between
the perpetrator and eyewitness, the degree of attention paid by the eyewitness to the
perpetrator, whether the eyewitness was nervous, scared or in distress, and whether both
individuals were the same or different race. These are the same factors defendant
contends would have been addressed by an expert. Yet defendant offers no explanation
as to why the jury could not have properly assessed these factors based upon their own
common knowledge and experience.
In these circumstances, we agree with the People that defendant has failed to meet
his burden to prove that no plausible explanation exists for his attorney’s failure to ask
the court to appoint an expert witness to testify on this subject. Indeed, rarely will this

3
Defense counsel noted other discrepancies in the eyewitnesses’ testimony,
including their inconsistent reports of what the perpetrator looked like and wore on the
night in question.

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court reverse based upon a defense counsel’s purported tactical error, as it is not our role
to judge an attorney’s decisions during the course of trial in the “harsh light of hindsight.”
(People v. Hinton (2006) 37 Cal.4th 839, 876.) And, in this case, in the absence of any
clear facts indicating defense counsel made a tactical error during trial by not calling an
expert witness to challenge the eyewitness identification, we will let her decision stand.
Finally, in any event, even aside from defendant’s failure to prove deficient
performance from counsel, we would nonetheless conclude no prejudice exists on this
record. To begin where we just left off, the jury was instructed, per CALCRIM No. 315,
to consider the very factors defendant contends the expert witness would have covered.
The jury was also instructed that the prosecution had the burden to prove defendant’s
guilt beyond a reasonable doubt. Thus, given these clear instructions, which we presume
the jury followed, as well as the absence of any showing by defendant that an expert
would have provided specific evidence relating to the identifications that would have
made a difference to his case, we conclude his challenge must fail. (People v. Datt,
supra, 185 Cal.App.4th at p. 952; People v. Kipp, supra, 18 Cal.4th at p. 366.)

II. Absence of Instruction on Voluntary Intoxication.
A. Failure of the Trial Court to Sua Sponte Instruct.
Defendant next argues that the trial court erred by failing to instruct sua sponte
that the jury should consider his voluntary intoxication in determining whether he had the
requisite specific intent to commit the crimes of robbery and attempted carjacking. As
the record reflects, the jury was given the standard instructions relating to the intent
required to support convictions for robbery, attempted carjacking and false imprisonment
by force (CALCRIM Nos. 251, 1600, 1650, and 1240); however, the jury was not given a
specific instruction relating to voluntary intoxication and its effect on the jury’s
consideration of the requisite intent. This argument, however, goes nowhere, as the
California Supreme Court, to which we must defer, has already decided this precise issue.
(See People v. Saille (1991) 54 Cal.3d 1103, 1119; accord People v. Bolden (2002) 29
Cal.4th 515, 559.) Rejecting the same argument raised here, the California Supreme
Court explained that, “under the law relating to mental capacity as it exists today, it

9
makes more sense to place on the defendant the duty to request an instruction which
relates the evidence of [defendant’s] intoxication to an element of a crime, such as
premeditation and deliberation. This is so because the defendant’s evidence of
intoxication can no longer be proffered as a defense to a crime but rather is proffered in
an attempt to raise a doubt on an element of a crime which the prosecution must prove
beyond a reasonable doubt. In such a case the defendant is attempting to relate his
evidence of intoxication to an element of the crime. Accordingly, he may seek a
‘pinpoint’ instruction that must be requested by him (See 5 Witkin & Epstein, Cal.
Criminal Law (2d ed. 1989) Trial, § 2925, pp. 3586-3587), but such a pinpoint instruction
does not involve a ‘general principle of law’ as that term is used in the cases that have
imposed a sua sponte duty of instruction on the trial court. The court did not err,
therefore, in failing to instruct sua sponte.” (People v. Saille, supra, 54 Cal.3d at
p. 1120.)
Accordingly, we reject defendant’s argument without further analysis under the
well-established principle of stare decisis. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)

B. Ineffective Assistance Based upon Defense Counsel’s Failure to
Request Instruction.
Defendant raises the alternative argument that, even if the trial court had no sua
sponte duty to instruct on the defense of voluntary intoxication, his attorney rendered
ineffective assistance by failing to request such an instruction. As noted above, however,
“[i]f the record on appeal fails to show why counsel acted or failed to act in the instance
asserted to be ineffective, unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory explanation, the claim must
be rejected on appeal.” (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.) The reason
is this. A strong presumption exists that counsel’s conduct falls within the wide range of
reasonable professional assistance. As such, “ ‘ “the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be considered
sound trial strategy.’ ” ’ ” (People v. Burnett, supra, 71 Cal.App.4th at p. 180, quoting

10
People v. Bunyard, supra, 45 Cal.3d at p. 1215 and Strickland v. Washington, supra, 466
U.S. at p. 689, italics added.)
Here, the appellate record contains no explanation for defense counsel’s failure to
request a jury instruction relating to defendant’s voluntary intoxication. At no time was
defense counsel asked to explain this failure, nor did she offer an explanation for it, either
directly or indirectly. As such, under the standards set forth above, we must reject
defendant’s claim of ineffective assistance of counsel on direct appeal “ ‘unless there
simply could be no satisfactory explanation.’ (People v. Pope (1979) 23 Cal.3d 412,
426.)” (People v. Kipp, supra, 18 Cal.4th at p. 367.)
Having reviewed the record, we conclude a plausible tactical explanation exists for
defense counsel’s failure to request a voluntary intoxication instruction, and thus that
defendant’s ineffective assistance claim must fail. The defense at trial was that defendant
had been misidentified as the perpetrator of the crimes, not that he was too intoxicated to
form the requisite intent to commit the crimes. As such, defense counsel may have
reasonably concluded that, as a tactical matter, it was preferable not to call attention to
defendant’s alcohol consumption or intoxication, but rather to focus on discrepancies in
the witnesses’ testimony identifying him as the perpetrator of the crimes, or factors
impacting their capacity to correctly identify the knife-wielding perpetrator. While
defendant suggests defense counsel should have done both – focused on his intoxication
and misidentification – it is not our role on appeal to second guess an attorney’s decision
regarding matters of trial strategy. And finally, given the by-all-means comprehensive
set of instructions read to the jury regarding the prosecution’s burden to prove each
element of each crime beyond a reasonable doubt – including the element of intent –
there is no basis for finding prejudice on this record even if we could find deficient
performance by counsel (which we cannot). Accordingly, because defendant cannot
prove that defense counsel’s deficient performance “ ‘so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having
produced a just result,’ ” his second challenge based upon ineffectiveness of counsel
likewise fails. (People v. Kipp, supra, 18 Cal.4th at p. 366.)

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III. Prosecutorial Misconduct.
A. Vouching for the Credibility of Witnesses.
Defendant next contends the prosecutor repeatedly engaged in prejudicial
misconduct by vouching for the credibility of witnesses. The governing law is this.
“A prosecutor’s conduct violates the Fourteenth Amendment to the federal
Constitution when it infects the trial with such unfairness as to make the conviction a
denial of due process. 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 trial court or
the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44 (Morales). As such, when alleged
prosecutorial misconduct occurred in the presence of the jury, “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.” (Morales, supra, 25 Cal.4th at p. 44.) Further,
if prosecutorial misconduct is established, the question remains whether the misconduct
was prejudicial, which, in turn, requires a showing by the defendant that it is reasonably
probable a result more favorable to the defendant would have occurred if the prosecutor
had refrained from the misconduct. (People v. Haskett (1982) 30 Cal.3d 841, 866.)
Prosecutorial misconduct requires reversal under federal law unless the misconduct was
harmless beyond a reasonable doubt. (People v. Cook (2006) 39 Cal.4th 566, 608.)
With respect to defendant’s first claim of prosecutorial misconduct, a prosecutor
“is generally precluded from vouching for the credibility of her witnesses, or referring to
evidence outside the record to bolster their credibility or attack that of the defendant.”
(People v. Anderson (1990) 52 Cal.3d 453, 479.) More specifically, a prosecutor may not
“ ‘place the prestige of [his] office behind a witness by offering the impression that [he]
has taken steps to assure a witness’s truthfulness at trial. [Citation.] However, so long as a
prosecutor’s assurances regarding the apparent honesty or reliability of prosecution
witnesses are based on the “facts of [the] record and the inferences reasonably drawn
therefrom, rather than any purported personal knowledge or belief,” [his] comments

12
cannot be characterized as improper vouching. [Citations.]’ [Citation.]” (People v. Ward
(2005) 36 Cal.4th 186, 215.)
The relevant record on this issue is as follows. First, defendant challenges as
improper vouching the prosecutor’s comments that, “there’s something about the human
nature and especially in trauma. I mean, I know it can be argued, well, it was traumatic,
discount everything. It goes both ways, and that’s what’s left for you to decide after
hearing the evidence what you feel about it. But what I saw in the women’s testimony is
a realness and honesty.” (Italics added.) At this point, defense counsel objected, and the
trial court agreed, warning the prosecutor and admonishing the jury: “You’re not to
argue your personal belief. The jury will disregard that.”
Second, defendant challenges these later remarks by the prosecutor: “[A]n hour
after being apprehended, [defendant] goes down to the station, waives [his] Miranda
[rights], signs off on a form with two separate officers in the room despite it not being
recorded, you got to judge their credibility. Because they didn’t record it, were they
fabricating? I mean, I – no.” (Italics added.) Defense counsel again objected, and the
court admonished the prosecutor not to “express your personal opinion about the facts.”
Lastly, defendant challenges the prosecutor’s line of argument when addressing
Carpenter’s eyewitness identification. Acknowledging that Carpenter was nervous and
uncertain when she identified defendant at the preliminary hearing, the prosecutor stated:
“in court, again, she said, no, I’m just about positive that’s the guy. These are all people
that live in that community. They’re not going to get the wrong person. They’re not out
to do the wrong – ” (Italic added.) Defense counsel raised another vouching objection,
which the court sustained, admonishing the prosecutor, “please do not vouch.”
Having reviewed this record, we conclude defendant has failed to demonstrate the
prosecutor’s comments were so deceptive or reprehensible that “there is a reasonable
likelihood that the jury construed or applied any of the complained-of remarks in an
objectionable fashion.” (Morales, supra, 25 Cal.4th at p. 44.) As the record reflects, the
trial court sustained several of defense counsel’s objections, and admonished the
prosecutor not to vouch or otherwise express any personal opinions with respect to the

13
witnesses’ credibility. Consistent with the court’s admonishment, the prosecutor
ultimately concluded his closing argument by telling the jury: “The[] [victims] got to
testify. And it’s up to you to decide if you find them honest, and you find they actually
saw him and could ID him in court.” (Italics added.) Moreover, the jury was repeatedly
instructed not to consider the attorneys’ statements or argument as evidence (CALCRIM
Nos. 104, 222), and to follow the court’s instructions to the extent an attorney’s comment
on the law appears inconsistent (CALCRIM No. 200). Finally, the court instructed the
jury that it “alone must judge the credibility or believability of witnesses” (CALCRIM
Nos. 105, 226). We presume, as the law requires, that the jury followed these clear
instructions. (People v. Delgado (1993) 5 Cal.4th 312, 331; People v. Mickey (1991) 54
Cal.3d 612, 689, fn. 17.) Accordingly, under the law set forth above, defendant’s
challenge fails.

B. Commenting on Defendant’s Failure to Testify.
Defendant further contends the prosecutor engaged in prejudicial misconduct by
“blatantly remind[ing] the jury that [he] did not testify.” More specifically, defendant
challenges the prosecutor’ statement that: “You know, the defendant has an absolute
right not to testify. And you cannot consider that -- ” We agree with the trial court that
the prosecutor was simply “stating the law” rather than engaging in misconduct.
“Under the rule in Griffin, error is committed whenever the prosecutor or the court
comments, either directly or indirectly, upon defendant’s failure to testify in his defense.
It is well established, however, that the rule prohibiting comment on defendant’s silence
does not extend to comments on the state of the evidence, or on the failure of the defense
to introduce material evidence or to call logical witnesses.” (People v. Medina (1995) 11
Cal.4th 694, 755; see also People v. Lewis (2001) 25 Cal.4th 610, 670 [under Griffin, a
prosecutor may “comment on the state of the evidence, ‘including the failure of the
defense to introduce material evidence or to call witnesses’ ”].)
Here, the prosecutor remarked that defendant had “an absolute right not to testify”
and that “you cannot consider it for anything.” Defendant insists these remarks violated
Griffin because, in reality, the prosecutor was attempting to remind the jury of his failure

14
to testify. However, defendant points to nothing aside from the statements themselves to
support his argument, other than a separate statement by the prosecutor asking why
defense counsel failed to call defendant’s father-in-law as a witness given defendant’s
alibi that he was with his father-in-law at the relevant time. Neither “showing” provides
a basis to find reversible error. First, defense counsel’s failure to call the father-in-law as
a witness does not implicate defendant’s right not to testify. As such, the prosecutor was
well within permissible bounds when alerting the jury to potential problems with
defendant’s alibi. (See People v. Bradford (1997) 15 Cal.4th 1229, 1339 [“a prosecutor
may commit Griffin error if he or she argues to the jury that certain testimony or evidence
is uncontradicted, if such contradiction or denial could be provided only by the defendant,
who therefore would be required to take the witness stand”].) And, second, as we have
already explained, the law requires us to presume the jury properly followed the court’s
instructions in the absence of any evidence to the contrary. (People v. Delgado, supra, 5
Cal.4th at p. 331.) Here, the jury was clearly instructed that “defendant has an absolute
constitutional right not to testify” (CALCRIM No. 355). The challenged statement by the
prosecutor was wholly consistent with this instruction. The jury was also instructed that
“[n]either side is required to call all witnesses who may have information about the case”
(CALCRIM No. 300). Given this record, there is simply no basis for reversal under
Griffin.

IV. Cumulative Trial Error.
In addition to arguing that each alleged trial error raised on appeal requires
reversal, defendant argues that the cumulative impact of these errors requires reversal
because the errors, considered together, cannot be proved harmless beyond a reasonable
doubt. We disagree. As we have seen, few errors were committed at trial, and no error
affected the jury’s verdict. As such, this argument provides no basis for reversal. (See
People v. Marshall (1990) 50 Cal.3d 907, 945 [“defendant is entitled to a fair trial but not
a perfect one”].)

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V. Sentencing Error.
Defendant’s remaining argument is that the trial court erred when imposing the
sentence on count three – to wit, eight months for false imprisonment by force, and four
months for the associated enhancement for personal use of a knife. According to
defendant, the court should have stayed this sentence pursuant to section 654.
Section 654 provides that “[a]n act or omission that is punishable in different ways
by different provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision.” (§ 654.) As the California Supreme Court
explains, where different provisions of law punish in different ways a defendant’s single
criminal act or course of criminal conduct, section 654 bars multiple punishments based
upon that single act or course of conduct. (People v. Jones (2012) 54 Cal.4th 350, 352.)
“[T]he accepted ‘procedure is to sentence defendant for each count and stay execution of
sentence on certain of the convictions to which section 654 is applicable.’ ” (Id. at
p. 353.)
“ ‘Whether a course of criminal conduct is divisible and therefore gives rise to
more than one act within the meaning of section 654 depends on the intent and objective
of the actor. If all of the offenses were incident to one objective, the defendant may be
punished for any one of such offenses but not for more than one.’ [Citation.]” (People v.
Latimer (1993) 5 Cal.4th 1203, 1208.)
Here, defendant argues that section 654 bars the court’s imposition of a separate
sentence for count three, false imprisonment by force and four months for the knife use
enhancement, because the “false imprisonment [count] constituted the fear or force
elements for the robbery and attempted carjacking.”4
Below, when urging the court to reject defendant’s section 654 argument, the
prosecutor argued that, when defendant committed the false imprisonment offence, he
had “formed a new intent, a new plan that distinguishes that [offense] and merits a
4
The trial court stayed imposition of sentence on count two, attempted carjacking,
pursuant to section 654.

16
separate punishment.” The prosecutor elaborated that, while the robbery and attempted
carjacking shared a common intent to steal, the false imprisonment involved “an entirely
different intent” because defendant had already taken Martinez’s possessions. The court
accepted this argument. We conclude for reasons that follow the court had a proper
evidentiary basis for declining to apply section 654. (See People v. Macias (1982) 137
Cal.App.3d 465, 470 [a finding of multiple objectives must be supported by substantial
evidence].)
As defendant notes, both the false imprisonment by force offense and attempted
carjacking offense involved a single victim, Martinez. The record, which is set forth in
greater detail above (pp. 3-4, ante), reflects that defendant approached Martinez in the
parking area of her apartment building around 11:30 p.m. Holding a large knife, he
demanded her money. When Martinez said she had none, defendant demanded and took
her car keys and cell phone. Defendant thereafter attempted to use Martinez’s keys to
open the wrong car before he returned the keys and instructed her to unlock her car.
Martinez told defendant to take her car, but leave her behind. Defendant, however, who
had moved behind her with the knife held just an inch from her stomach, told her to get
into the passenger seat. At this point, Martinez was able to slide over to the driver seat,
lock defendant out of the car, and escape.
On this factual record, the trial court had sufficient grounds for declining to apply
section 654 to preclude a separate sentence on count three. We accept as reasonable the
prosecution’s argument that, while defendant may have had a common intent when
committing the robbery and attempted carjacking against Martinez (to wit, the intent to
steal), his intent when falsely imprisoning her appears different and new. At that point,
defendant had already taken Martinez’s car keys and phone, and had confirmed she had
no money to give him. Moreover, Martinez had told defendant he could take her car but
that she did not want to get into the car with him. Nonetheless, defendant placed the
knife about an inch from her stomach and instructed her to get in. What would have
transpired had Martinez not been able to escape at that point is not known. However, the
fact remains that substantial evidence exists in support of the trial court’s finding that

17
defendant, when he continued to force Martinez into the car at knife point, despite her
insistence that he take her car and leave, harbored a separate intent. As such, the court’s
decision to impose a sentence for count three was appropriate. (See People v. Saffle
(1992) 4 Cal.App.4th 434, 438 [substantial evidence supported the trial court’s finding
that the defendant had separate objectives when committing sex crimes and a false
imprisonment crime where the “false imprisonment followed the completion of the
sexual acts and was to prevent [the defendant’s] detection as the attacker”].)

DISPOSITION
The judgment is affirmed.

_________________________
Jenkins, J.

We concur:

_________________________
Pollak, Acting P. J.

_________________________
Siggins, J.

People v. Bernardo Sanchez Zapata, A139209

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