Filed 2/11/21 P. v. Diaz CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B300369
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA448969)
v.
ORDER MODIFYING
MELISSA PAULINE DIAZ, OPINION AND DENYING
REHEARING
Defendant and Appellant.
CHANGE IN JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on January 22, 2021,
be modified as follows:
1. On page 1, second line of text after the caption, the word
“Affirmed” is deleted and the following sentence is inserted in its
place:
Modified and affirmed with directions.
2. On page 2, the last sentence of the first full paragraph,
“We disagree and affirm,” is deleted and the following text is
inserted in its place:
We disagree and affirm the judgment of conviction.
However, in light of the recent change to the
maximum term of probation effected by Assembly
Bill No. 1950 (AB 1950) (Stats. 2020, ch. 328, § 2, eff.
Jan. 1, 2021), we reduce the term of appellant’s
probation from five years to two years.
3. On page 18, before the Disposition, add the following
new part III to the Discussion:
III. In Accordance with Assembly Bill
No. 1950, the Term of Appellant’s
Probation Is Reduced from Five Years
to Two Years
While this appeal was pending, AB 1950 took
effect on January 1, 2021. (Stats. 2020, ch. 328, § 2.)
AB 1950 reduced the maximum probation term for
most felony offenses to two years. (§ 1203.1, subds.
(a) & (m).) Because the reduction in the length of
the probation term has an ameliorative effect, we
presume that our Legislature intended to make its
effect retroactive to nonfinal convictions in the
absence of an express savings clause specifying a
contrary intent. (In re Estrada (1965) 63 Cal.2d 740,
744–747.) AB 1950 contains no such savings clause.
2
Therefore, in accordance with AB 1950, the
maximum term of appellant’s probation as to count 1
is now two years. (Accord, People v. Sims (2021) __
Cal.App.5th __, 2021 Cal.App.LEXIS 33, *17–*35
[reaching same result]; People v. Quinn (2021) __
Cal.App.5th __, 2021 Cal.App.LEXIS 27, *3–*16
[same].) We consequently remand the matter to the
trial court to correct the minute order governing the
length and terms of probation to reflect a two-year
term of formal probation. Should either the People
or the defendant wish to make further motions
regarding the length or terms of probation, each may
file the appropriate motion(s) with the trial court.
4. On page 18, the Disposition is modified to reflect the
change in the judgment as follows:
DISPOSITION
The term of probation imposed as to count 1 is
reduced from five years to two years. The trial court is
directed to correct the minute order to reflect the
imposition of a two-year term of formal probation, and to
notify the Los Angeles County Department of Probation
of the change to appellant’s probationary term. In all
other respects, the judgment is affirmed.
3
This modification changes the judgment.
Appellant’s petition for rehearing is denied.
NOT TO BE PUBLISHED.
LUI, P. J. ASHMANN-GERST, J. HOFFSTADT, J.
4
Filed 1/22/21 P. v. Diaz CA2/2 (unmodified opinion)
NOT TO BE PUBLISHED IN THE 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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B300369
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA448969)
v.
MELISSA PAULINE DIAZ,
Defendant and Appellant.
APPEAL from judgment of the Superior Court of Los
Angeles County. Richard S. Kemalyan, Judge. Affirmed.
Gordon B. Scott, 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, David E. Madeo and Yun K. Lee,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
Melissa Diaz appeals the judgment entered following a jury
trial in which she was convicted of one count of offering a false or
forged instrument for recording. (Pen. Code,1 § 115, subd. (a).)
The trial court imposed and suspended a three-year sentence and
placed appellant on formal probation for five years. Appellant
contends: (1) the trial court abused its discretion and
prejudicially erred by admitting inflammatory and irrelevant
photographs into evidence; and (2) the prosecutor committed
prosecutorial misconduct by improperly relying on propensity
evidence in argument to the jury. We disagree and affirm.
FACTUAL BACKGROUND
On August 9, 2013, appellant and her husband, Rudy Diaz
(Diaz),2 recorded a deed (the August 2013 deed) at the Los
Angeles County Registrar-Recorder/County Clerk’s office in
Norwalk, which purported to grant a residential property at 2725
Baltic Avenue (the Baltic Avenue property) and four commercial
properties on West 15th Street to Indyway Investment (Indyway)
for a payment of 21 silver dollars on May 8, 1992. Indyway was a
trust created by appellant and Diaz; appellant served as its
secretary, appellant and Diaz were its sole beneficiaries, and its
location was traced to the Diazes’ address in Cerritos.
The August 2013 deed was identical in all material respects
to another deed appellant and Diaz had recorded on May 11, 1992
1 Undesignated statutory references are to the Penal Code.
2 Diaz was a codefendant in the case, but he passed away
shortly before trial.
2
(the May 1992 deed).3 However, by 2013, appellant, Diaz, and
Indyway could no longer claim any interest in the Baltic Avenue
property, which had been lost through foreclosure eight years
earlier in 2005.4
Diaz first acquired the Baltic Avenue property in 1985
before he and appellant were married. In 1988 Diaz obtained a
$97,600 loan secured by a deed of trust on the Baltic Avenue
property, which was recorded on March 24. On April 27, 1990,
another deed of trust securing a $127,500 loan to Diaz was
recorded. The May 1992 deed granted Indyway an interest in the
property that was subordinate to these loans and had no effect on
them: The 2005 foreclosure of these senior loans and sale of the
3The only differences between the May 1992 deed and the
August 2013 deed were the notarization, Indyway’s address, and
the name of the trustee.
4 By 2005, appellant, Diaz, and Indyway had already lost
their interests in two of the commercial properties on the deed.
On October 6, 2003, Dennis Cooper purchased the commercial
properties at 2030 and 2034 West 15th Street for cash in a tax
default sale. Shortly thereafter, appellant and Diaz claimed they
owned Cooper’s property because Indyway had “redeemed” it. On
March 18, 2004, Indyway filed a lawsuit against Cooper and Los
Angeles County challenging Cooper’s ownership of the properties
and seeking the cancellation of the tax sale. Following a bench
trial, judgment was entered quieting title in favor of Cooper, and
litigation ended in 2008 with the affirmance of the judgment on
appeal and the denial of a petition for writ of certiorari by the
United States Supreme Court. ( [as of Jan. 11, 2021],
archived at .)
3
Baltic Avenue property extinguished all prior interests of
appellant, Diaz, and Indyway in the property.
On May 8, 2006, after the foreclosure, Longinna Willis
purchased the Baltic Avenue property, but lost it through
foreclosure in 2010.
On July 8, 2010, Vatana Kim and his two brothers
purchased the Baltic Avenue property from Deutsche Bank
National Trust Company; a deed of trust and grant deed
identifying the Kims as grantees were recorded on the property.
Thereafter, Kim lived in the home with his two brothers, father,
and sister. He regularly paid his mortgage, property taxes,
insurance, and utilities.
On September 19, 2013, a month after the August 2013
deed was recorded, a 60-day notice to quit was placed on the front
door of the Baltic Avenue property. Kim reported the notice to
quit to the Long Beach Police Department and also went to the
county recorder’s office, where he learned of the August 2013
deed.
Detective Andre Sanchez from the financial crimes unit of
the Long Beach Police Department investigated the incident.
Kim showed Detective Sanchez his July 8, 2010 grant deed and
other paperwork establishing his ownership and ongoing
maintenance of the property. He also showed the detective a
copy of the August 2013 deed.
On December 2, 2013, Kim reported to Detective Sanchez
that he had been served with an eviction notice on November 27.
On January 24, 2014, as Kim was in the process of moving to a
new house, and his father was away on vacation, Kim went to the
Baltic Avenue property and found that someone had changed the
locks and posted a no-trespassing sign on the property. After
4
reporting the incident to Detective Sanchez, Kim had the locks
changed back, installed surveillance cameras, and contacted an
alarm company.
On January 30, 2014, Kim received a call from the alarm
company. When he reviewed the surveillance footage he saw
people breaking into the Baltic Avenue house and disabling the
surveillance system. Kim called Detective Sanchez. When the
detective and other officers arrived on the scene, appellant was
standing a few feet from the open passenger door of a Toyota
Tacoma truck parked near Kim’s house. In response to Detective
Sanchez’s inquiry, appellant gave her name and said she lived at
2725 Baltic Avenue. The detective stated that someone else lived
there, and appellant replied, “ ‘No. We are tenants in common.’ ”
The burglar alarm at the home was blaring. As appellant and
Detective Sanchez walked toward the house, the detective asked
appellant to turn off the alarm. Appellant replied that she was
unable to do so because someone else had installed it, and she did
not have the passcode.
Detective Sanchez and other officers found the kitchen door
unlocked and a lockset on the floor. The deadbolt had been
removed from the front security door, which was open and
secured with a chain and padlock to prevent it from closing.
Appellant had the key to the padlock in her purse. In appellant’s
truck police found several lock sets in a bag and two binders
containing the August 2013 deed and numerous photographs of
the properties listed on the deed along with the notice to vacate
that had been posted on the Baltic Avenue property. Appellant
stated that all the items found in the truck belonged to her. Kim
provided Detective Sanchez with the keys to the lockset found on
the floor as well as the locksets recovered from appellant’s truck.
5
In an interview conducted by Detective Sanchez following
appellant’s arrest, appellant stated that she and Diaz moved into
the Baltic Avenue house after they were married in 1988.
Eventually they stopped paying the mortgage and property taxes,
and moved out when they lost the Baltic Avenue property
through foreclosure in 2005.
In 1992 appellant and Diaz transferred the Baltic Avenue
property to Indyway for 21 silver dollars after learning in a
seminar that they could not lose their interest in a property
purchased for 21 silver dollars without a jury trial. Appellant
asserted that because there had been no jury trial and Indyway
had never sold the property, Indyway still owned it and Kim was
a trespasser. Further, appellant claimed that as the secretary
and one of the beneficiaries of Indyway, she still owned the Baltic
Avenue property. Appellant admitted that Indyway did not pay
the mortgage on the property. And while she acknowledged the
2005 foreclosure based on appellant and Diaz’s failure to pay the
mortgage, appellant claimed that the foreclosure was only
against her and Diaz and had no effect on Indyway’s property
interest.5
Appellant told Detective Sanchez that on January 27 or 29,
2014, she had called the Long Beach Police Department for help
changing the locks on the Baltic Avenue property. But she never
filed a police report over the alleged trespass because she was
“ ‘trying to unravel the fraud’ ” first.
5 Appellant also asserted that because Indyway had paid 21
silver dollars to the Los Angeles County Tax Assessor’s Office in
1992 for the property taxes, appellant, Diaz, and Indyway were
exempt from having to pay the property taxes.
6
In 2014 Kim filed a quiet title action against Indyway and
the Diazes. On January 29, 2015, a judgment upholding Kim’s
ownership of the Baltic Avenue property and canceling the
August 2013 deed was recorded.
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion in
Admitting Photographs of the Baltic Avenue
Property Taken After the Recording of the
False Deed
Appellant contends the trial court abused its discretion in
admitting 26 photographs of the Baltic Avenue property
purportedly taken on January 26, 2014. Because the
photographs were taken nearly six months after the recording of
the false deed, appellant argues the evidence was wholly
irrelevant to the only matter at issue, that is, whether appellant
knew the deed was false when she filed it. Appellant further
contends that the photographs were unduly prejudicial and the
trial court abused its discretion in failing to exclude the evidence
under Evidence Code section 352. We disagree.
A. Relevant proceedings
Over a defense objection on relevance grounds, the trial
court admitted 26 photographs contained in a binder seized from
appellant’s truck and a photo of a no trespassing sign with
appellant’s phone number that had been affixed to the Baltic
Avenue property. Each of the 26 photographs was marked
“Indyway Investment’s property at 2725 Baltic Avenue, Long
Beach, California, on January 26, 2014” along with a description.
Some of the photographs showed the outside of the house while
others showed the interior.
7
In its ruling the trial court explained: “I think it’s a very,
very close call. To the extent there’s been testimony that upon
the arrival of the officers and inquiry of [appellant], she said that
she lived in that location, this evidence may possibly be
impeachment. For a variety of reasons, I’m going to allow these
photographs, but I believe that the People should not belabor
this. I would like to move through it rapidly . . . . I do believe
they go to the knowledge element in some respects, and also . . .
to the extent to which [appellant] was willing to carry [out the
offense].”
Detective Sanchez then identified the items and
photographs found in the binders recovered from appellant’s
truck, including the August 2013 deed, photographs of the
outside of the Baltic Avenue property, the no-trespass sign, and
photographs of the inside of the Baltic Avenue property showing
furniture, clothing, and other items.
B. The photographs of the Baltic Avenue property were
relevant and not unduly prejudicial
Appellant argues that the photographs taken after the
recording of the false deed constituted character evidence, the
sole relevance of which was to portray appellant as a conscious
law breaker and to inflame the jury by showing her inclination to
invade the sanctity of another person’s home. To the contrary,
although not dispositive, the photographs were relevant to
impeach appellant’s statement to Detective Sanchez that she
lived at the property and thereby revealed her awareness that
she lacked any legitimate ownership interest in the property.
Evidence Code section 1101, subdivision (a) “ ‘expressly
prohibits the use of an uncharged offense if the only theory of
relevance is that the accused has a propensity (or disposition) to
8
commit the crime charged and that this propensity is
circumstantial proof that the accused behaved accordingly on the
occasion of the charged offense.’ ” (People v. Bryant, Smith and
Wheeler (2014) 60 Cal.4th 335, 406 (Bryant).) Although evidence
of the defendant’s commission of other crimes, civil wrongs, or
bad acts is inadmissible to prove the defendant’s conduct on a
specified occasion, such evidence can be used to attack the
defendant’s credibility. (Evid. Code, § 1101, subd. (c); People v.
Kennedy (2005) 36 Cal.4th 595, 620 [limitations on the
admissibility of evidence of specific instances of misconduct “do
not apply to evidence offered to support or attack the credibility
of a witness”]; People v. Hawthorne (2009) 46 Cal.4th 67, 99
[“Unless precluded by statute, any evidence is admissible to
attack the credibility of a witness if it has a tendency in reason to
disprove the truthfulness of the witness’s testimony”].) Such
evidence may also be admitted to prove a material fact in dispute
such as motive, intent, preparation, plan, knowledge, or the
absence of mistake or accident. (Evid. Code, § 1101, subd. (b);
People v. Cage (2015) 62 Cal.4th 256, 273 (Cage); People v. Jones
(2013) 57 Cal.4th 899, 930.)
“ ‘Evidence Code section 210 defines “relevant evidence” as
“evidence . . . having any tendency in reason to prove or disprove
any disputed fact that is of consequence to the determination of
the action.” ’ ” (People v. Pearson (2013) 56 Cal.4th 393, 438
(Pearson).) If evidence of another instance of defendant’s
misconduct is relevant to prove some fact other than propensity,
the evidence may properly be admitted subject to a limiting
instruction upon request. (Bryant, supra, 60 Cal.4th at p. 406.)
We review the trial court’s ruling on the admissibility of such
evidence for abuse of discretion (Cage, supra, 62 Cal.4th at
9
p. 274; Bryant, at p. 405), reversing only where “ ‘it is shown
“ ‘the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice.’ ” ’ ” (People v. Jones (2017) 3 Cal.5th 583,
609, quoting People v. Merriman (2014) 60 Cal.4th 1, 74.)
Here, the photographs of the Baltic Avenue property taken
after the recording of the false deed were relevant to the disputed
issue of appellant’s intent and knowledge that the deed was false
and to impeach appellant’s credibility.
Conviction on the charge of offering a false document for
recording required the prosecution to prove that appellant
knowingly offered a false “instrument to be filed, registered, or
recorded in any public office within this state, which instrument,
if genuine, might be filed, registered, or recorded under any law
of this state or of the United States.” (§ 115, subd. (a); People v.
Abrahamian (2020) 45 Cal.App.5th 314, 327 & fn. 4.) The crime
“is sufficiently proven when it is shown that the accused
intentionally committed the forbidden act.” (People v. Geibel
(1949) 93 Cal.App.2d 147, 168–169; Abrahamian, at p. 327 [“An
intent to defraud is not an element of a violation of section 115,
subdivision (a)”].)
Here, the defense did not dispute that the August 2013
deed was false, but only that appellant knew it was false when
she offered it for recording. The photographs of the Baltic
Avenue property helped establish this element by showing
appellant’s unlawful campaign to “evict” Kim, who was not even
her tenant, instead of taking reasonable and lawful steps to
investigate or quiet title. Indeed, appellant’s acts of entering and
photographing the interior and exterior of the property,
unlawfully changing the locks, and disabling the surveillance
10
system appear part of a continuous effort to cloud the title to the
property, which began with the recording of the false deed. The
photographs were also relevant to expose appellant’s lie to
Detective Sanchez that she lived at the property, and thus
impeach appellant’s credibility.
Of course, “ ‘[e]vidence is relevant when no matter how
weak it is it tends to prove a disputed issue.’ ” (Pearson, supra,
56 Cal.4th at p. 438.) The photographs of the Baltic Avenue
property admitted here were certainly not dispositive on the
issues of knowledge, intent, or appellant’s credibility. They did,
however, have some tendency in reason to prove or disprove
disputed facts related to those issues, and were therefore
relevant. (Pearson, at p. 438.)
Even if uncharged acts evidence is relevant and otherwise
admissible, such evidence may nevertheless be excluded under
Evidence Code section 352 if its probative value is substantially
outweighed by the probability that its admission will require an
undue consumption of time, will confuse or mislead the jury, or it
is unduly inflammatory or poses a substantial risk of undue
prejudice. (Bryant, supra, 60 Cal.4th at p. 407; People v. Wang
(2020) 46 Cal.App.5th 1055, 1076.) The trial court in this case
did not abuse its discretion in determining that the photographs
of the Baltic Avenue property were admissible under Evidence
Code section 352.
In accordance with the trial court’s directive that the
prosecution not belabor the point, Detective Sanchez’s testimony
about the photographs was very brief, consisting of just four
pages of the reporter’s transcript. The detective’s
straightforward identification of the photographs and general
description of the subject matter was neither confusing nor
11
misleading. And there was nothing inflammatory about the
photos, which merely showed furniture and some personal effects
in various rooms of a house. Given that Kim had already
testified about discovering the changed locks and break-ins to the
house, there was no substantial likelihood the jury would have
been inflamed upon seeing exterior and interior photographs of
the house.
Admission of the photographs simply did not create a
substantial danger of undue prejudice. (Evid. Code, § 352, subd.
(b).) As our Supreme Court has repeatedly explained, “ ‘ “In
applying [Evidence Code] section 352, ‘prejudicial’ is not
synonymous with ‘damaging.’ ” ’ [Citation.] ‘ “ ‘[A]ll evidence
which tends to prove guilt is prejudicial or damaging to the
defendant’s case.’ ” ’ [Citation.] The ‘prejudice’ which section 352
seeks to avoid is that which ‘ “ ‘uniquely tends to evoke an
emotional bias against the defendant as an individual and which
has very little effect on the issues.’ ” ’ ” (Cage, supra, 62 Cal.4th at
p. 275; People v. Williams (2013) 58 Cal.4th 197, 270.)
In sum, we find no abuse of discretion in the trial court’s
admission of the challenged photographs under Evidence Code
section 1101 or Penal Code section 352.
II. Appellant Forfeited Any Prosecutorial
Misconduct Claim
Appellant contends the prosecution committed misconduct
by arguing guilt based on character evidence, using the events
that occurred after August 9, 2013, to paint her “as a law
breaker, a con artist, a person worthy of conviction.” However,
appellant’s failure to object to the prosecutor’s argument and
request an admonition forfeited any misconduct claim and her
12
further assertion that trial counsel was ineffective for failing to
object lacks merit.
A. Relevant background
The central thrust of the prosecutor’s argument to the jury
was that at least eight years before August 2013, appellant had
lost any legal interest in the Baltic Avenue property, she knew
she had lost the property through foreclosure, and her conduct
and the events after she recorded the false deed belied her claim
of an innocent mistake. Defense counsel also cited appellant’s
actions and events after the deed was recorded to argue that
appellant believed Indyway still owned the property, the deed she
filed “was true,” and she was acting within her rights to oust Kim
from the property.
In rebuttal, the prosecutor argued that not only had
appellant in fact lost the Baltic Avenue property through
foreclosure, but no “reasonable person” would think she still
owned the property after not making any tax or mortgage
payments for eight years. Moreover, the prosecutor argued that
“a reasonable person, who was acting in good faith, who was just
confused,” “a reasonable, innocent person acting with
noncriminal intent” would not have tried to evict a person she
found living on the property without first checking with the
county recorder. The prosecutor continued, “We know that
[appellant’s] conduct shows that she knows that what she’s done
is unlawful and that she is going to try her best to get away with
something else, but all we have to ask is, does she know it’s a
false document? She absolutely, based on the evidence, does
know it’s a false document. There’s no reasonable way, no
reasonable basis for her to think she owns, Rudy Diaz owns that
property in 2013 when this deed is filed.”
13
The prosecutor concluded: “Proof beyond a reasonable
doubt is not beyond all possible doubt. It’s not about speculation.
. . . It’s about your reasonable evaluation of the evidence in this
case from the witness stand that has to do with Melissa Diaz and
what she is [sic] knows, and . . . I want to direct you back to
follow the jury instructions because you’re here to evaluate
Melissa Diaz, and everything in what she did, and said, and the
way she acted tells you that she knew what she was doing was
wrong. She knew that this was a false document not based on
any ownership interest and that therefore she should be found
guilty of the crimes she is being charged with.”
B. Appellant forfeited her claim
“ ‘ “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
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. The failure to do so forfeited any claim of
14
prosecutorial misconduct on appeal. (People v. Fuiava (2012) 53
Cal.4th 622, 679–680 [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.)
C. Trial counsel was not ineffective
Seeking to avoid forfeiture of her 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
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.
15
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 her counsel’s inadequacy in this
case for the simple reason that the prosecutor’s remarks did not
constitute misconduct.
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; People v. Marshall
16
(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, quoting
Centeno, at p. 667.) In reviewing a claim of prosecutorial
misconduct based on a prosecutor’s argument to the 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.)
Here, the prosecutor pointed to appellant’s conduct in using
unlawful means to assert a property interest she knew she did
not have as evidence that the recording of the false deed was not
some innocent mistake, but part and parcel of an effort to cloud
the title and claw back a property appellant had lost to
foreclosure eight years earlier. The prosecutor’s argument did
not constitute an improper reliance on character evidence, but
merely highlighted evidence that had been properly admitted to
impeach appellant’s credibility and to prove material facts in
dispute including intent, plan, knowledge, and the absence of
mistake or accident. (Evid. Code, § 1101, subd. (b); Cage, supra,
62 Cal.4th at p. 273; People v. Jones, supra, 57 Cal.4th at p. 930.)
Defense counsel 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”].)
17
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
18