Filed 1/4/19
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C083509
Plaintiff and Respondent, (Super. Ct. No. 16FE002037)
v.
MARKECE JOVON CHATMAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Sacramento County, Paul L.
Seave, Judge. Affirmed.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Robert Gezi, Julie A. Hokans,
Deputy Attorneys General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of parts II, III, and IV of the Discussion.
1
The jury’s verdict finding defendant Markece Jovon Chatman guilty of pimping
and pandering was based on the testimony of a prostitute, who admitted lying and told
vastly different stories each time she gave a statement or testified, the text messages she
exchanged with defendant, and a letter defendant wrote to a woman in Texas pleading
with her to claim in an affidavit that she sent the text messages to the prostitute. On
appeal, defendant alleges that instructional error and ineffectiveness of counsel
necessitate reversal of the judgment. We disagree and affirm the judgment.
FACTS
Antoinette was unhappy living at home with her mother, stepfather, and other
relatives. She had no income and felt “out of place” and “lost.” She wore a necklace
with the ashes of her son. Her cousin, who had been working as a prostitute, encouraged
Antoinette to join the profession and when she agreed, the cousin schooled her on the
way to make a living and stay reasonably safe. The cousin advertised Antoinette’s
services on Backpage.com, a website utilized by prostitutes and their customers. The
cousin also introduced Antoinette to defendant so he would help with her prostitution.
The introductions were by phone calls and text messages. Defendant was listed as
“Dad Mob” in Antoinette’s contacts. She explained that a pimp is often referred to as
dad or daddy by a prostitute. Defendant asked Antoinette for a picture and asked who
had advertised on her behalf. He complimented her on the picture and assured her they
would “go get on us [sic] a program.” He told her he wanted to take her on a trip to the
Bay Area. When she specifically asked if he would have her “walking,” defendant
responded, “[j]ust a lil” and volunteered to post ads for her services on the internet. On
the first day they met in person, they left Sacramento for the Bay Area.
Given the inconsistencies in Antoinette’s testimony and statements to the police, it
is nearly impossible to construct a timeline of what happened and when. What is clear
from the record is that Antoinette spent about a week with defendant, leaving Sacramento
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and traveling with him to Vallejo, San Jose, Concord, and San Francisco. She left
Sacramento with hopes of having a romantic relationship with him while working
together to expand her business opportunities. In Vallejo, defendant picked up some
provocative clothes from a storage unit for Antoinette to wear while she worked.
Antoinette testified defendant dropped her off in San Jose, handing her condoms and
warning her not to engage in prostitution with black men. She was more successful in
Concord where she had three or four car dates having either oral sex or intercourse with
her clients.
How much money she actually made, if any, walking the streets and getting dates,
including car dates, is unclear. She testified business was sometimes poor, the
relationship with defendant soured quickly, defendant slapped her, they slept in their car,
and she asked her mother to send her money. On one occasion, Antoinette sent defendant
a text informing him that someone was following her. He responded, “Just walk and pay
attention to the money but watch yo back ok im.out and stay off phone till serious.”
While the details shifted with each telling, she consistently testified that defendant
advertised her services, encouraged her to commit acts of prostitution, and reaped the
benefit of the money she earned. Indeed, she testified she gave defendant all the money
she earned as a prostitute during the time they were together. He used the money to buy
food and gas.
Midway through the trip to the Bay Area, Antoinette’s cousin appeared. At trial,
Antoinette remembered that day as lucrative. Again she gave all the proceeds to
defendant.
Antoinette became disillusioned with defendant and prostitution. On one
occasion, a customer tried to hit her with his car. Scared, she called defendant who
insisted “bitch, stay out there.” In San Francisco, Antoinette was unsuccessful landing
any customers despite walking the streets for a few hours and the tension between
Antoinette and defendant grew. At one point, defendant became angry when he saw her
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talking to different men. He took her into an alley and, choking her, ordered her not to
“do no shit like that again.” In response to her complaint he was hurting her, defendant
responded, “Bitch, I don’t give a fuck.”
By then, Antoinette wanted to go home but defendant told her “no, to go and make
some more money.” She finally “had enough.” Unbeknownst to defendant, she called
another cousin to pick her up. Scared of defendant, she left with her cousin without her
suitcase, her clothes, her medication, her identification, and, most importantly, the
necklace with her son’s ashes. She later attempted to get her property back from
defendant but was unsuccessful.
They corresponded by text messages after she returned to Sacramento. He wrote:
“[W]e can work around jail all u gotta do is dress a certain way and once we leave the
bay its a different ball game but u panic and not giving me the time [¶] . . . I need with
us so u can understand any thing im go be by yo side and love u hold u laugh with u and
enjoy life to the fullest if u stop these mixed though [¶] . . . [¶] Its yes or no u comin
home so we doing us mfs just trying leave cali and be happy it get tough and hard but its
about us but if its not good baby im done [¶] . . . [¶] My family know i pimp but know u
my girl I got yo shit put up right now like I care [¶] . . . Im cool nett dont hit my phone
or try and text me if u not fucking with me all this is just slowing me down i dont let
nothing come inbetween or stop my program . . . .”
There were several text messages retrieved from Antoinette’s cell phone involving
actual prostitution transactions with customers requesting a “30 qky,” referring to a quick
30-minute prostitution encounter and another asking if the texter could pay a $30
donation for a 15-minute quickie. In yet another text exchange, Antoinette and her
customer negotiated a quickie in her car.
In a letter addressed to a woman in Texas, defendant, while incarcerated, asked the
woman to sign an affidavit that she used his phone to send text messages to Antoinette
about pimping and prostitution because she was jealous of Antoinette.
4
Defendant did not testify and presented no evidence in his defense.
DISCUSSION
I
Pandering When the Victim is Already a Prostitute
Defendant was convicted of pandering in violation of Penal Code section 266i,
subdivision (a)(1), not subdivision (a)(2). A person violates subdivision (a)(1) when he
or she “[p]rocures another person for the purpose of prostitution.” (Pen. Code, § 266i,
subd. (a)(1).) Subdivision (a)(2) includes several other elements providing, in pertinent
part, that any person who “[b]y promises, threats, violence, or by any device or scheme,
causes, induces, persuades, or encourages another person to become a prostitute” is guilty
of pandering. (Pen. Code, § 266i, subd. (a)(2).) Defendant contends the trial court erred
by refusing his proposed modification to CALCRIM No. 1151 and his lawyer provided
constitutionally deficient representation by failing to request additional modifications.
Having conducted a de novo review of the alleged instructional error, we conclude his
arguments are without merit. (People v. Posey (2004) 32 Cal.4th 193, 218.)
Defendant submitted the following proposed instruction:
“The defendant is charged in Count 1 [sic] with pandering in violation of Penal
Code section 266i(a).
“To prove that the defendant is guilty of this crime, the People must prove beyond
a reasonable doubt the following elements:
“1. The defendant successfully caused, induced, persuaded or encouraged
Antoinette Doe to become a prostitute;
“2. The defendant successfully caused, induced, persuaded or encouraged
Antoinette Doe to become a prostitute by promises, threats, violence or any device or
scheme;
“AND
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“3. The defendant intended to influence Antoinette to be a prostitute.
“Whether Antoinette was a prostitute before meeting the defendant is not a bar to
pandering.” (Fn. omitted.)
The trial court found the proposal inaccurate in part and no better than the
standardized instruction in part. The court instructed the jury on pandering as follows:
“The Defendant is charged in Count 2 with pandering in violation of Penal Code
section 266i. To prove that the Defendant is guilty of this crime, the People must prove
that, one, the Defendant successfully persuaded Antoinette Doe to become a prostitute,
and, two, the Defendant intended to influence Antoinette Doe to be a prostitute.
“It does not matter whether Antoinette Doe was a prostitute already.” (CALCRIM
No. 1151, as given.)
Defendant’s modification to the instruction and his claim his lawyer should have
attempted to modify it even further is based on a misreading of People v. Zambia (2011)
51 Cal.4th 965 (Zambia). The most obvious flaw in defendant’s argument is the fact
Zambia was prosecuted under Penal Code section 266i, subdivision (a)(2), not
subdivision (a)(1). As the trial court found, the prosecution had no burden to prove
element No. 2 of the proposed modification that defendant used “promises, threats,
violence, or any device or scheme” to encourage Antoinette to engage in prostitution.
The court quite properly struck that part of the proposed instruction as it was not an
element of the charged offense.
But the thrust of defendant’s argument on appeal is his notion that if the pandering
involves a person who is already engaged in prostitution, Zambia requires a change in the
prostitute’s business model or the establishment of new working relationships in the trade
as a result of the panderer’s involvement. It is true that the focus of the analysis in
Zambia was the statutory language contained in subdivision (a)(2) “to become a
prostitute.” And the question was whether a prostitute could “become” what she already
was. The court recognized “that when a pimp offers protection and support to a prostitute
6
in return for some or all of her income, the offer increases the likelihood that the
prostitute will be able to maintain or expand her activities, an outcome squarely at odds
with the statutory goal.” (Zambia, supra, 51 Cal.4th at p. 974.) The court further found
that “[t]o encourage an established prostitute to change her business relationship
necessarily implies that a defendant intends a victim ‘to become a prostitute’ in the future
regardless of her current status.” (Id. at p. 975.)
Again we point out that the targeted language “to become a prostitute,” while
central to the analysis in Zambia, is not an element of the pandering offense with which
defendant was charged and convicted. Penal Code section 266i, subdivision (a)(1)
requires only that a defendant “[p]rocures another person for the purpose of prostitution.”
As a result, Zambia’s extensive analysis of what it means to become a prostitute is
inapplicable to a subdivision (a)(1) prosecution.
Nevertheless, because the trial court instructed the jury that “[t]o prove that the
Defendant is guilty of this crime, the People must prove that, one, the Defendant
successfully persuaded Antoinette Doe to become a prostitute” with the additional caveat,
“[i]t does not matter whether Antoinette Doe was a prostitute already,” we briefly address
the defendant’s misunderstanding of Zambia’s holding. Defendant reads Zambia to
require a change in a prostitute’s business model. In his view, if Antoinette merely
maintained the same type of prostitution business she operated before they met, then he
was not guilty of pandering and the jury should have been instructed on this important
nuance. His lawyer, he insists, was incompetent for failing to request an instruction
capturing the significance of the requisite change in business model or change in her
working relationship.
Zambia does indeed focus on the prostitute’s future behavior. But the
involvement of a pimp or panderer almost by definition changes the prostitute’s business.
As quoted above, the court in Zambia recognized that the protection provided by a pimp,
in conjunction with the services he provides in advertising the prostitute’s services and
7
encouraging her to engage in prostitution, promotes her business and influences her
future conduct. (Zambia, supra, 51 Cal.4th at pp. 974-975.) To overcome the argument
that a prostitute already in the business cannot “become a prostitute” if she already is one,
the court necessarily emphasized how the pimp or panderer’s involvement influences her
future behavior. Thus, although she had been a prostitute in the past and/or continued to
be a prostitute in the present, a pimp’s assistance facilitated her prostitution in the future
and met the statutory definition.
Defendant, however, overstates the type and degree of change that must occur in
the prostitute’s operations. He suggests a wholesale revision in the business model is
needed to demonstrate that the panderer had a palpable impact on the success of the
business endeavor. In the absence of a significant change in how a prostitute does
business, defendant maintains the pimp or panderer has not influenced her future
behavior, has not contributed to additional prostitutes on the street, and has not
committed the evil the pandering statute is designed to prevent. We disagree this is what
Zambia requires, what the statute requires, or what common sense requires.
“ ‘The purpose of the anti-pandering statute [citation] is to “cover all the various
ramifications of the social evil of pandering and include them all in the definition of the
crime, with a view of effectively combating the evil sought to be condemned.”
[Citations.]’ ” (Zambia, supra, 51 Cal.4th at p. 973.) Moreover, “ ‘[a] substantial
potential for social harm is revealed even by the act of encouraging an established
prostitute to alter her business relations. Such conduct indicates a present willingness to
actively promote the social evil of prostitution.’ [Citation.]” (Id. at p. 974.)
The caveat the court gave the jurors correctly emphasized that the fact Antoinette
was already a prostitute did not matter. We agree with the trial court the defendant’s
proposed modification instructing the jurors that “[w]hether Antoinette was a prostitute
before meeting the defendant is not a bar to pandering” did not improve or clarify the
standardized language in any meaningful way. The court did not err by refusing such an
8
inconsequential alteration of the time-tested standardized instruction. There was no
instructional error. And because we reject defendant’s characterization of the Zambia
holding and conclude the prosecution need not demonstrate a demonstrable change in the
prostitute’s business model, defendant’s lawyer did not fail to provide constitutionally
adequate representation.
II
Sua Sponte Duty to Instruct on Witness Credibility
The trial court instructed the jurors pursuant to CALCRIM No. 226 that, in
evaluating the credibility of a witness, they may consider if the “witness [made] a
statement in the past that is consistent or inconsistent with his or her testimony,” if the
“witness admit[ted] to being untruthful,” and if the “witness engaged in other conduct
that reflects on his or her believability.” Defendant argues the court had a sua sponte
obligation to give an additional instruction on witness credibility as set forth in
CALCRIM No. 316, Alternative B as follows: “If you find that a witness has committed
a crime or other misconduct, you may consider that fact [only] in evaluating the
credibility of the witness’s testimony. The fact that a witness may have committed a
crime or other misconduct does not necessarily destroy or impair a witness’s credibility.
It is up to you to decide the weight of that fact and whether that fact makes the witness
less believable.” Defendant is mistaken.
CALCRIM No. 316 is a limiting instruction, and therefore, it need only be given
upon request. (People v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052, overruling
People v. Mayfield (1972) 23 Cal.App.3d 236.) Defendant, however, insists that
CALCRIM No. 316 would have functioned as more than a limiting instruction in this
case. In the absence of CALCRIM No. 316, defendant argues, the jury would not have
known that it could consider the fact that Antoinette had engaged in prostitution in
assessing her credibility.
9
Not so. CALCRIM No. 226’s scope is broad. While it did not name prostitution,
it certainly allowed the jury to consider many aspects of Antoinette’s credibility including
her prior inconsistent statements, her admissions she had lied, and her conduct reflecting
on her believability. Prostitution is a crime of moral turpitude and, consequently,
evidence Antoinette was engaged in prostitution was admissible and was admitted to
impeach her. (People v. Chandler (1997) 56 Cal.App.4th 703, 708-709.) We conclude
that the jury, having been instructed on the broad scope of factors they could consider in
assessing credibility, would reasonably have understood it could take prostitution into
account in assessing Antoinette’s credibility. Had defendant felt it necessary to pinpoint
the instruction more precisely, and thereby, to identify prostitution expressly, he should
have requested the limiting instruction readily found in CALCRIM No. 316.
Of course, defendant has covered this base as well, asserting that his lawyer
provided inadequate representation by failing to request the court to instruct the jury in
the language provided by CALCRIM No. 316. “ ‘If 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.’ [Citations.]” (People
v. Cunningham (2001) 25 Cal.4th 926, 1003.) The Attorney General suggests at least two
viable explanations why counsel may have decided to forego the CALCRIM No. 316
instruction.
CALCRIM No. 316 contained the following cautionary language, whereas
CALCRIM No. 226 did not: “The fact that a witness may have committed a crime or
other misconduct does not necessarily destroy or impair a witness’s credibility.”
Strategically, counsel may not have wanted to call the jury’s attention to the fact that
Antoinette’s conduct constituted a crime. CALCRIM No. 226 accomplished the same
goal of focusing the jury’s attention on Antoinette’s lack of credibility without
emphasizing that she herself had engaged in a continuous course of criminal conduct.
10
The other reason counsel may have opted not to request CALCRIM No. 316 is
closely related. Counsel simply may not have wanted to attack Antoinette’s character
based on the fact she was involved in prostitution. He may have feared alienating the
jurors who, under the facts in this case, may have been sympathetic to Antoinette given
her living situation, her vulnerability, the influence of family members, and the loss of
her son. After all, Antoinette testified she was in a very bad place. Defense counsel
cross-examined her extensively on her repeated lies and the many inconsistencies in her
testimony. He reasonably may have concluded that impeachment based on a failure to be
truthful would be more compelling to a jury than the mere fact that life circumstances
propelled her into prostitution to support herself. Because there were reasonable tactical
justifications for relying exclusively on CALCRIM No. 226, we conclude defendant’s
lawyer did not provide inadequate representation.
III
Sua Sponte Obligation to Instruct on De Facto Expert Testimony
The prosecution did not designate Detective John Sydow of the Sacramento
County Sheriff’s Department as an expert witness. Assigned to the Human Trafficking
Unit of the Special Investigations Bureau, he investigated Antoinette’s allegations. Over
the course of his career, he became familiar with terminology used by pimps, panderers,
and prostitutes and he testified to the meaning of many of those commonly used terms
and phrases. Defendant claims his testimony rendered him an expert, whether he was
designated or not, and gave rise to the court’s sua sponte obligation to instruct the jury on
how to consider expert testimony.
CALCRIM No. 332, in defendant’s view, should have been given. It provides:
“(A witness was/Witnesses were) allowed to testify as [an] expert[s] and to give [an]
opinion[s]. You must consider the opinion[s], but you are not required to accept (it/them)
as true or correct. The meaning and importance of any opinion are for you to decide. In
11
evaluating the believability of an expert witness, follow the instructions about the
believability of witnesses generally. In addition, consider the expert’s knowledge, skill,
experience, training, and education, the reasons the expert gave for any opinion, and the
facts or information on which the expert relied in reaching that opinion. You must decide
whether information on which the expert relied was true and accurate. [¶] You may
disregard any opinion that you find unbelievable, unreasonable, or unsupported by the
evidence.”
Rather than argue the merits of whether the detective was, or was not, an expert,
the Attorney General insists that any error in failing to instruct on expert testimony was
harmless. Defendant, relying heavily on People v. Reeder (1976) 65 Cal.App.3d 235
(Reeder), maintains there is a strong possibility the jury verdict would have been different
if the trial court had instructed the jury on the weight to be given expert testimony as
required by Penal Code section 1127b. Reeder is easily distinguished and provides little,
if any, support for defendant’s position. Adopting the Attorney General’s economical
approach to evaluate harmlessness without conceding or deciding whether the detective’s
explanation of terms used in the prostitution business actually constitutes expert
testimony deserving of the instruction, we conclude any possible error is harmless. (See
People v. Mays (2017) 15 Cal.App.5th 1232, 1238.)
The most striking difference between Reeder, supra, 65 Cal.App.3d 235, and the
case before us is the degree to which the credibility of the witnesses determined the
outcome. In Reeder, polygraph experts gave completely divergent opinions about the
truthfulness of the parties’ testimony. Although polygraph results were considered
unreliable, the parties had stipulated to their admission. Justice Puglia explained: “If, as
seems inevitable to us, the polygraph testimony materially influenced the jury, then
resolution of the credibility issue as between defendant and victim, in practical effect the
ultimate issue in the case, was in significant part determined by the jury’s evaluation of
the expert testimony. At this point it bears repeating that polygraph evidence is
12
considered by the great weight of authority to be so unreliable as to be inadmissible
without a stipulation. [Citation.] If judicial skepticism is well-founded, the claims of the
experts herein are no less extravagant because they are uncontroverted. Undoubtedly, the
jury may still give full credit to such testimony where, as here, it is properly before them
by stipulation of the parties. If it is to do so, however, it should be with full awareness of
its prerogative to discount or disregard even uncontradicted expert opinion if found to be
unreasonable. Without that awareness, the critical, skeptical approach necessary to
meaningful jury analysis of this questionable yet highly persuasive evidence will be
foreclosed. In that event, the danger exists that the sovereign responsibility of the jury
may in effect be subordinated to a misplaced faith in ‘scientific proof.’ A polygraph
cannot serve as proxy for defendant’s peers.” (Id. at pp. 242-243.)
In a rape case like Reeder, which presented the quintessential credibility contest
between a defendant and his victim, evidence as powerful as polygraph expert testimony
plays a highly persuasive, if dubious, role. The case before us presents none of the
dangers exposed in Reeder. First and foremost, defendant’s guilt did not rely exclusively
on the credibility of his victim. His own conduct provided compelling evidence of his
guilt including his damning text messages and his attempt to persuade another woman to
falsely claim she was the one who had sent the text messages. Secondly, Antoinette’s
credibility was challenged by defense counsel exhaustively through cross-examination
and the many lies and inconsistencies she told up to and throughout the trial were
highlighted effectively for the jury during closing argument. But the so-called expert’s
testimony confirming the accuracy of Antoinette’s use of vernacular associated with
prostitution was of little importance and totally unlike the pivotal testimony of the
polygraph experts in Reeder. Antoinette, by her own admission, was a prostitute and
therefore her use of terms customarily used in the trade was to be expected. Unlike the
polygraph experts’ testimony, which cast grave doubt, if it did not destroy the
defendant’s credibility, the detective’s testimony did not add anything to what the jury
13
already knew—Antoinette was a prostitute familiar with the jargon well known in the
business.
In sum, the de facto expert’s testimony about a series of words used by pimps and
prostitutes added nothing of significance to the prosecution’s case. The instruction
freeing the jury of any obligation to believe the expert would have had no impact on the
outcome of the case because Antoinette’s understanding of the terms the detective
defined was accurate and had no bearing on whether defendant pandered her. There is no
reasonable possibility that CALCRIM No. 332 would have changed the outcome, and as
a result, if there was any error, it is harmless.
IV
Prosecutorial Misconduct and Ineffective Assistance of Counsel
It is well accepted that a defendant waives his or her right to challenge any
missteps by the prosecutor if he or she fails to object at trial. (People v. Panah (2005)
35 Cal.4th 395, 462.) Here defendant raised no objection to the prosecutor’s closing
argument during which she purportedly distorted the reasonable doubt standard. Thus,
his challenge to the prosecutor’s argument is framed as an ineffective assistance of
counsel claim for failure to object. Again he is unable to show the requisite prejudice.
Nearing the conclusion of her closing argument, the prosecutor returned to the
theme of reasonable doubt and the burden of proof. She explained to the jury: “You can
only find [defendant] not guilty if you have reasonable doubt, and reasonable doubt
means an abiding conviction that the charge is true. Do not be intimidated by that
standard. It is a standard that jurors all across this country reach every single day. It is a
standard that you know in your everyday life, but no one talks like that in real life, okay?
I can tell you that I have an abiding conviction and I know beyond a reasonable doubt
that my favorite food is anything with buffalo chicken. I know that beyond a reasonable
doubt, but I don’t talk like that. So do not be intimidated by that standard.”
14
We agree with defendant that the prosecutor “trivialized and distorted the
reasonable doubt standard when she argued that it is one ‘that you know in your everyday
life’ and then further analogized it to her favorite food.” In People v. Nguyen (1995)
40 Cal.App.4th 28 (Nguyen), a prosecutor similarly argued that the reasonable doubt
standard is applied “ ‘every day in your lives when you make important decisions,
decisions about whether you want to get married, decisions that take your life at stake
when you change lanes as you’re driving.’ ” (Id. at p. 35.) The court found the argument
“trivializes the reasonable doubt standard” and was improper insofar as it equated the
reasonable doubt standard with the standard people use in everyday life. (Id. at p. 36.)
In Nguyen, as here, the improper argument was harmless. (Nguyen, supra,
40 Cal.App.4th at pp. 36-37 & fn. 2.) To the extent the prosecutor’s argument was an
improper reassignment of the burden of proof, the remark was brief and mild. (People v.
Gonzalez (1990) 51 Cal.3d 1179, 1215, superseded by statute on another ground in In re
Steele (2004) 32 Cal.4th 682, 391.) The question is whether, under these circumstances,
as in Nguyen, the litany of standard jury instructions could ameliorate the prejudicial
effect of the prosecutor’s instructions, properly elucidating the reasonable doubt standard.
Although we agree with defendant that reasonable doubt plays a vital role in a criminal
trial, we nevertheless believe there are unique circumstances, as here, where the potential
damage arising from a slight deviation from approved standard language can be cured by
proper instructions.
The trial court properly instructed the jury on the reasonable doubt standard as
embodied in CALCRIM No. 220, an instruction that has withstood vigorous attack.
Pursuant to CALCRIM No. 200, the trial court further instructed the jury that if they
believed one of the attorney’s comments on the law conflicted with the instructions, they
must follow the instructions. For emphasis, the court repeated this admonition before
closing arguments. We presume the jurors followed the court’s instruction and were
savvy enough to realize that the court presented the law, whereas the prosecutor’s
15
comments were spoken as an overly zealous attempt of an advocate to persuade the jury.
(People v. Thornton (2007) 41 Cal.4th 391, 441.)
Defendant attempts to persuade us with inapposite authority from the Eighth
Circuit, which is neither on point nor controlling. In short, the prosecutor’s behavior in
Newlon v. Armontrout (8th Cir. 1989) 885 F.2d 1328, was egregious. “[T]he prosecutor
(1) expressed his personal belief in the propriety of the death sentence and implied that he
had special knowledge outside the record; (2) emphasized his position of authority as
prosecuting attorney of St. Louis County; (3) attempted to link petitioner with several
well-known mass murderers; (4) appealed to the jurors’ personal fears and emotions; and
(5) asked the jurors to ‘kill him now. Kill him now.’ ” (Id. at p. 1335.) Given the
severity and pervasiveness of the prosecutorial misconduct, it is hardly surprising the
court found that the trial court’s instructions did not cure the immense harm the
prosecutor caused. The court did not hold that standardized instructions can never cure
the harm inflicted by a prosecutor; rather, the court held the instructions could not cure
the damage the prosecutor’s egregious misconduct had caused in this particular case.
Newlon bears no resemblance to the more benign and isolated mistake the prosecutor
made in arguing the case against defendant. Defendant’s authority does not bolster his
case.
As mentioned, we view any attempt to shift the burden of proof or to diminish the
rigor the reasonable doubt standard imposes on jurors as a dangerous incursion into the
heart of our criminal justice system. Nevertheless, we cannot say that a slight or mild
misstatement of the standard during closing argument can undermine the authority of the
court in properly and fully instructing the jury on the law and nuance required in proving
that an accused is guilty beyond a reasonable doubt. Here the prosecutor’s misstep falls
within that narrow category of cases in which the standardized instructions cured any
harm her slight misstatement might conceivably have caused. Thus, we conclude
defendant’s lawyer’s failure to object to the argument was harmless.
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DISPOSITION
The judgment is affirmed.
RAYE , P. J.
We concur:
ROBIE , J.
BUTZ , J.
17