Filed 11/20/20 P. v. Evans CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B303471
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA074781)
v.
GLEN DALE EVANS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Shannon Knight, Judge. Affirmed.
Laura R. Vavakin, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Michael R. Johnsen and Yun K. Lee,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
Glen Dale Evans appeals the judgment entered following a
jury trial in which he was convicted of one felony count of
dissuading a witness from reporting a crime (Pen. Code,1 § 136.1,
subd. (b)(1); count 1), two felony counts of vandalism causing over
$400 damage (§ 594, subd. (a); counts 2, 4), and one count of
misdemeanor domestic battery (§ 243, subd. (e)(1); count 3), a
lesser included offense of felony injury to a spouse (§ 273.5, subd.
(a)). In bifurcated proceedings, the trial court found true the
allegations that appellant was previously convicted of three
serious or violent felonies under the “Three Strikes” law (§§ 667,
subd. (d), 1170.12, subd. (b)), and served two prison terms
pursuant to section 667.5, subdivision (b). The trial court
sentenced appellant to 25 years to life plus four years in state
prison.
Appellant contends the prosecutor committed prejudicial
error by misstating the law on the reasonable doubt standard,
thereby reducing the People’s burden of proof in violation of
appellant’s Sixth and Fourteenth Amendments’ fair trial and due
process rights. Appellant further contends that defense counsel’s
failure to object to the prosecutor’s misstatement of law
constituted ineffective assistance of counsel. We disagree and
affirm.
FACTUAL BACKGROUND
Appellant and Lawson were married in February 2015, but
in June 2018 they were in the process of separating, and by
September of that year they were legally separated. In June
2018, Lawson was living in an apartment with her cousin, her 16-
1 Undesignated statutory references are to the Penal Code.
2
year-old son, and her two daughters.2 Appellant did not live
there, but visited periodically.
On June 20, 2018, appellant arrived at Lawson’s apartment
and kicked the door open. Lawson repeatedly asked him to leave,
but appellant refused and called Lawson names as he and
Lawson began arguing. When Lawson tried to leave the
apartment, appellant became violent⎯he grabbed her, threw her
against the wall, and ordered her to sit on the couch. He then
took Lawson’s cell phone and took a nap.
Appellant’s cell phone rang while he was sleeping, and
Lawson picked it up. Scrolling through the phone, Lawson saw
that appellant had been communicating with a woman.
Appellant woke up, aggressively snatched his phone away from
Lawson, and demanded to know why she was looking at his
phone. Lawson asked appellant what he was doing talking to
this woman. Grabbing Lawson by her arm and hair, appellant
dragged her to the bedroom and said he was “ ‘going to teach
[her] a lesson.’ ” Appellant slammed Lawson against the wall
and then threw her onto the bed. When appellant approached
Lawson as if to hit her, she kicked him and told him to get off
her. Appellant began pacing around the room and Lawson went
into the bathroom. She demanded that appellant leave but he
refused.
At some point appellant picked up Lawson’s 55-inch
television from the dresser and threw it against the closet door,
damaging both the television and the door. He also kicked the
walls and doors throughout the apartment, making about six
holes in the walls and kicking a door off its hinges.
2 Appellant and Lawson have no children together.
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Lawson retrieved her son’s cell phone and threatened to
call the police. But before she could do so, appellant grabbed the
phone and threw it at the bedroom door, causing the back of the
phone and the battery to detach. He picked up the pieces of the
phone and kept them. Appellant then pushed Lawson onto the
bed and told her to go to sleep. He laid down next to her, and
they stayed on the bed for the rest of the night.
On September 23, 2018, about 2:00 p.m. Lawson was at
home in her apartment with her son, her cousin, and her friend,
Tikesha Gilbert, when appellant kicked open the front door,
breaking the lock. Upon entering the apartment appellant said
he needed to take a shower and Lawson could not stop him. After
showering, appellant walked around the apartment verbally
harassing Lawson. Lawson’s son came to his mother’s defense,
and appellant threatened him, saying, “ ‘I’ll knock your little ass
out.’ ” Lawson told appellant to leave her son alone and
appellant pushed the boy in the face. Lawson then pushed
appellant, and he pushed her back into the couch. When Gilbert
told appellant to get out, appellant smashed his fist into the
television, causing it to fly into the wall creating a large hole.
Appellant then kicked a glass standing vase into the glass
television stand, and everything shattered. As Gilbert called the
police, appellant said, “ ‘I’m going to kill you, bitch,’ ” and ran out
the door.
DISCUSSION
I. Appellant Forfeited Any Prosecutorial
Misconduct Claim by Failing to Object Below
Appellant contends the prosecutor committed misconduct
during closing argument by reducing the prosecution’s burden of
proving guilt beyond a reasonable doubt, and the trial court erred
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by failing immediately to point out the error and correct the
misstatement of the law. Specifically, appellant asserts that the
prosecutor’s statement that the reasonable doubt standard of
proof is used to convict people in every type of criminal case
throughout the country and should therefore not be viewed as
“some kind of impossible standard that nobody can reach”
misstated the law and trivialized the People’s burden of proof.
But defense counsel neither objected to the argument nor
requested an admonition. Appellant’s claim is therefore forfeited.
A. Relevant background
In closing argument to the jury defense counsel explained
that the standard of proof beyond a reasonable doubt applied in
criminal cases is the highest standard of proof used in any type of
case. It is higher than the preponderance of the evidence
standard applied in civil cases, and higher than the clear and
convincing standard of proof applied in family law cases. Defense
counsel emphasized that proof beyond a reasonable doubt
requires jurors “to have an abiding conviction [of] the truth of the
charge,” and “you don’t have that here.”
In rebuttal, the prosecutor responded by arguing:
“Reasonable doubt. So that’s the final concept here.
Defense counsel[ ] started with that and ended with that, and I’ll
do the same and end with that. So reasonable doubt, it’s
important, right? And, yes, we are here in a criminal case, and
it’s one of the most important concepts that we have here, but it
is something that is used not only in this courtroom where we are
here today but also next door, down the hall, throughout the
courtrooms throughout the county, throughout our entire country
in every criminal case, and that means if a person is stealing a
candy bar from Target all the way to a person who went out and
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killed an entire family, it’s the same concept, and it’s used
throughout every courtroom for every type of criminal case. So
don’t feel that it’s some kind of impossible standard that nobody
can reach.”
Defense counsel neither objected nor requested that an
admonition be given to the jury.
Immediately after closing arguments, the trial court
instructed the jury that if its instructions on the law conflicted
with anything the attorneys said, the court’s instructions must
prevail. (CALCRIM No. 222.) The trial court also instructed the
jury on the presumption of innocence, and informed the jury it
was the prosecution’s burden to prove the charges beyond a
reasonable doubt. “Proof beyond a reasonable doubt,” the trial
court instructed, “is proof that leaves you with an abiding
conviction that the charge is true. The evidence need not
eliminate all possible doubt because everything in life is open to
some possible or imaginary doubt.” (CALCRIM No. 220.)
B. Analysis
“ ‘ “As a general rule a defendant may not complain on
appeal of prosecutorial misconduct unless in a timely fashion—
and on the same ground—the defendant made an assignment of
misconduct and requested that the jury be admonished to
disregard the impropriety.” ’ ” (People v. Thomas (2011) 51
Cal.4th 449, 491; People v. Hill (1998) 17 Cal.4th 800, 820; People
v. Cowan (2017) 8 Cal.App.5th 1152, 1161 (Cowan II) [claim of
prosecutorial misconduct is reviewable only if timely objection
and request for admonition made at trial; in the absence of an
objection and request for admonition, matter is reviewable only if
an admonition would not have cured the harm].) Moreover, even
if an objection was made and sustained, the issue is still forfeited
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for appeal if an admonition to the jury to disregard the improper
comment would have cured the harm, but none was requested.
(People v. Silva (2001) 25 Cal.4th 345, 373; Cowan II, at p. 1161.)
Here, as appellant concedes, defense counsel neither
objected to the prosecutor’s argument nor requested an
admonition. And while appellant argues that the failure to object
and request an admonition may be excused if either would have
been futile or ineffective, he does not even suggest this was so in
the present case. (See People v. Fuiava (2012) 53 Cal.4th 622,
679; People v. Arias (1996) 13 Cal.4th 92, 159.) Indeed, elsewhere
in his brief appellant contends that an immediate admonition to
the jury would have been the only means of curing the harm from
the prosecutor’s improper argument. Appellant’s failure to object
and request an admonition to disregard the prosecutor’s
misstatement thus forfeited any claim of prosecutorial
misconduct on appeal. (Fuiava, at p. 680 [where defendant failed
to show objection and admonition would have been futile and
would not have cured harm, appellate claims of misconduct were
forfeited]; Cowan II, supra, 8 Cal.App.5th at p. 1161.)
II. Defense Counsel Did Not Render Ineffective
Assistance by Failing to Object to the
Prosecutor’s Argument or Request an
Admonition
To avoid forfeiture of his prosecutorial misconduct claim,
appellant argues that trial counsel was ineffective for failing to
object to the prosecutor’s argument and request an admonition.
To establish ineffective assistance of counsel, a “defendant
must demonstrate counsel’s inadequacy. To satisfy this burden,
the defendant must first show counsel’s performance was
deficient, in that it fell below an objective standard of
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reasonableness under prevailing professional norms. Second, the
defendant must show resulting prejudice, i.e., a reasonable
probability that, but for counsel’s deficient performance, the
outcome of the proceeding would have been different.” (People v.
Mai (2013) 57 Cal.4th 986, 1009; Strickland v. Washington (1984)
466 U.S. 668, 687–688.) “On direct appeal, a conviction will be
reversed for ineffective assistance only if (1) the record
affirmatively discloses counsel had no rational tactical purpose
for the challenged act or omission, (2) counsel was asked for a
reason and failed to provide one, or (3) there simply could be no
satisfactory explanation.” (Mai, at p. 1009.) “[W]e ‘defer[ ] to
counsel’s reasonable tactical decisions’ and presume that ‘counsel
acted within the wide range of reasonable professional
assistance.’ [Citation.] Thus, defendant ‘ “must overcome the
presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’ ” ’ ” (People v.
Arredondo (2019) 8 Cal.5th 694, 711.) “This rule ‘is particularly
apt’ where, as here, ‘the asserted deficiency arises from defense
counsel’s failure to object. “[D]eciding whether to object is
inherently tactical, and the failure to object will rarely establish
ineffective assistance.” ’ ” (Ibid.)
Appellant cannot establish his counsel’s inadequacy in this
case for the simple reason that the prosecutor’s remarks did not
constitute error or misconduct. Trial counsel thus cannot be
deemed to have provided ineffective assistance for failing to
object to proper argument. (People v. Turner (2004) 34 Cal.4th
406, 431 [where defendant’s prosecutorial misconduct claim fails,
“his ineffective assistance of counsel claim predicated on the
failure to object to this misconduct fails”].)
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The applicable federal and state standards for establishing
prosecutorial error or misconduct are well settled. “ ‘ “ ‘A
prosecutor’s . . . intemperate behavior violates the federal
Constitution when it comprises a pattern of conduct “so egregious
that it infects the trial with such unfairness as to make the
conviction a denial of due process.” ’ ” [Citations.] 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 court or the jury.” ’ ” ’ ” (People v.
Suarez (2020) 10 Cal.5th 116, 175; People v. Williams (2013) 56
Cal.4th 630, 671; Parker v. Matthews (2012) 567 U.S. 37, 45;
Darden v. Wainwright (1986) 477 U.S. 168, 181 [“The relevant
question is whether the prosecutors’ comments ‘so infected the
trial with unfairness as to make the resulting conviction a denial
of due process’ ”].)
While a prosecutor has significant latitude “in discussing
the legal and factual merits of a case during argument,” it is
improper for the prosecutor to misstate the law, and in
particular, the prosecution may not attempt to reduce its burden
to overcome reasonable doubt on all elements of the offense.
(People v. Centeno (2014) 60 Cal.4th 659, 666 (Centeno); People v.
Marshall (1996) 13 Cal.4th 799, 831.) “ ‘[W]hen attacking the
prosecutor’s remarks to the jury, the defendant must show that,
“[i]n the context of the whole argument and the instructions”
[citation], there was “a reasonable likelihood the jury understood
or applied the complained-of comments in an improper or
erroneous manner.” ’ ” (People v. Bell (2019) 7 Cal.5th 70, 111
(Bell), quoting Centeno, at p. 667.) In reviewing a claim of
prosecutorial misconduct based on a prosecutor’s argument to the
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jury, “ ‘we “do not lightly infer” that the jury drew the most
damaging rather than the least damaging meaning from the
prosecutor’s statements.’ ” (Centeno, at p. 667; Bell, at p. 111.)
“Prosecutors should avoid drawing comparisons that risk
confusing or trivializing the reasonable doubt standard.” (Bell,
supra, 7 Cal.5th at p. 111.) Our Supreme Court has also
“generally discouraged prosecutors from using colorful analogies
or displays” to illustrate the concept of reasonable doubt. (Bell,
at p. 111; Centeno, supra, 60 Cal.4th at p. 667.) But there is
nothing about the prosecutor’s remarks in the instant case that
trivialized the prosecution’s burden or that could be characterized
as “innovative but ill-fated attempts” to explain the reasonable
doubt standard of which the high court has disapproved.
(Centeno, at pp. 667, 671.) Unlike some cases in which
prosecutors attempted to quantify reasonable doubt or
characterize it as an everyday decision like changing lanes in
traffic (see Bell, at p. 111; People v. Nguyen (1995) 40 Cal.App.4th
28, 35–36), the prosecutor here did not misstate the law or
mischaracterize the reasonable doubt standard at all. Rather,
the prosecutor told the jury, simply and accurately, that the
reasonable doubt standard is applied in every criminal case
throughout the country, regardless of the seriousness of the
offense, and that it is not “some kind of impossible standard that
nobody can reach.” In short, nothing about the statement
suggested that the jury’s task was “less rigorous than the law
requires” (Centeno, at p. 671), or in any way undermined the
reasonable doubt standard (Bell, at p. 112).
Because the prosecutor’s remarks did not amount to error
or misconduct, defense counsel cannot be faulted for failing to
object or request an admonition.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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