People v. Mariscal CA6

Filed 6/3/21 P. v. Mariscal CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H047243
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1891605)

v.

CARLOS MARISCAL,

Defendant and Appellant.

Defendant Carlos Mariscal was found guilty by a jury of one count of
second-degree robbery (Pen. Code, § 212.5)1 and was sentenced to three years in state
prison.
On appeal, Mariscal argues that a number of the prosecutor’s remarks during final
argument amounted to prosecutorial misconduct and his trial counsel was constitutionally
ineffective for failing to object to them. As explained below, we conclude there was no
misconduct and thus no duty to object, but even if there were, Mariscal was not
prejudiced. Therefore, we will affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural Background
On April 18, 2019, Mariscal was charged by information with second-degree
robbery (§ 212.5, subd. (c)). The information further alleged that Mariscal personally

1
Unspecified statutory references are to the Penal Code.
used a deadly weapon (a knife) during the robbery (§ 12022, subd. (b)(1)) and that he had
suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12).
On June 12, 2019, a jury found Mariscal guilty of second-degree robbery, but
found not true the allegation that he personally used a knife in committing the offense. In
a bifurcated proceeding, the trial court found true the allegation that Mariscal had a prior
strike conviction.
After granting Mariscal’s Romero2 motion, the trial court sentenced him to the
middle term of three years in prison with total credits of 187 days, consisting of 163 days
custody credits plus 24 days of credits pursuant to section 2933.1. The trial court
imposed a restitution fine of $300 (§ 1202.4, subd. (b)), with an identical parole
revocation fine imposed but suspended (§ 1202.45), a $40 court operations assessment
(§ 1465.8), a $30 criminal conviction assessment (Gov. Code, § 70373), a criminal justice
administration fee of $129.75 payable to the City of San Jose (Gov. Code, §§ 29550,
29550.1, 29550.2), and a $10 crime prevention fund fine plus $31 penalty assessment
(§ 1202.5). Pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 the court stayed
all fines, fees, and assessments based on the prison sentence and Mariscal’s
unemployment.
Mariscal timely appealed.
B. Evidence Presented at Trial
1. The Prosecution Case
Pedro E.3 testified that, on March 29, 2018, he was practicing soccer with his
coworker, Oscar F., on the field at an elementary school in San Jose. Pedro E. and
Oscar F., who worked for a landscaping company, had finished work for the day.4
2
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
3
We refer to the victim and the other eyewitness by their first names and last
initials in order to preserve their anonymity. (Cal. Rules of Court, rule 8.90(b)(4), (10).)
4
The landscaping company was owned by Oscar F.’s father, but Pedro E. testified
that everyone pooled their money to purchase equipment and supplies for the business.

2
Pedro E. parked his car, which contained “a lawnmower, blower, a weedwhacker,” and
other landscaping tools and equipment, in the parking lot by the soccer field. The
lawnmower did not fit fully inside the trunk, so Pedro E. secured it with a rope. As a
result, the trunk was half open.
As they practiced, Oscar F. noticed a person, later identified as Mariscal, riding a
bicycle in circles around the parking lot and he thought it was suspicious. Pedro E.
walked over to talk to Mariscal. Mariscal told him he was “just checking out [a] girl”
who was at the soccer field. Pedro E. used the restroom, then returned to the field.
Oscar F. then informed Pedro E. that Mariscal was coming back on foot. Pedro E.
could see that Mariscal had left his bicycle outside a nearby fence and was walking back
to the parking lot toward Pedro E.’s vehicle. Pedro E. returned to the parking lot, and
asked Mariscal what he was doing. At this point, Mariscal was near the back of
Pedro E.’s car and Pedro E. was in front of his car. Mariscal took the weedwhacker out
of the trunk. Pedro E. stepped toward him and asked, “ ‘Hey, what are you doing?’ ”
Mariscal pulled out a knife from the “side of his shorts,” and thrust it toward Pedro E.,
saying, “ ‘Don’t get close to me, you know, I’ll use it.’ ”5 Pedro E. was afraid and told
Mariscal to “take it.” He believed that Mariscal would use the knife if he tried to get the
weedwhacker back.
Mariscal ran off with the tool and got on his bicycle. Pedro E. got into his car and
called 911. Oscar F. testified that when he and Pedro E. got into the car, Pedro E. “was
pretty scared.” Pedro E. and Oscar F. began to follow Mariscal, relaying their position to
the dispatcher, and eventually they saw Mariscal standing with his bicycle by an

5
There was conflicting evidence on this point. During the 911 call, Pedro E. told
the dispatcher that Mariscal had pulled out a knife and told him to “walk away.” When
he spoke to police just after Mariscal was detained, Pedro E. denied that Mariscal pulled
out a knife, saying “ ‘No. No. He just had it right here [in his waistband].’ ” At the
preliminary hearing, Pedro E. testified that Mariscal “had taken the knife out of his waist
[sic] and . . . put it in front of him like he was going to use the weapon.”

3
apartment complex. Mariscal appeared to be breathing hard, but he no longer had the
weedwhacker.6 Pedro E. saw the police arrive and take Mariscal into custody. Pedro E.
identified Mariscal at the scene as the person that took the weedwhacker from the trunk
of his car.
San Jose Police Detective Alejandro Ortiz, along with other officers, responded to
Pedro E.’s 911 call with lights and siren activated. Ortiz testified that police did not find
a knife on Mariscal when he was arrested, nor did police recover a knife anywhere in the
vicinity that day. However, Ortiz also testified that it is not uncommon for suspects to
discard weapons or other evidence of crime because “[n]obody wants to be arrested with
something that they just committed a crime with.”
2. The Defense Case
Mariscal presented no evidence in his defense.
II. DISCUSSION
A. Ineffective Assistance of Counsel
Mariscal argues his trial counsel was ineffective for failing to object to multiple
instances of prosecutorial misconduct during final argument. According to Mariscal, that
misconduct consisted of the prosecutor “denigrat[ing] defense counsel, misstat[ing] the
law, and improperly play[ing] to the jurors’ sympathies.” We conclude the prosecutor’s
statements did not constitute misconduct and, even if they did, Mariscal cannot show he
was prejudiced by them.
1. Applicable Legal Principles
“Under both the Sixth Amendment to the United States Constitution and article I,
section 15, of the California Constitution, a criminal defendant has the right to the
assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a
claim of ineffective assistance of counsel, a criminal defendant must establish both that

6
Police officers recovered the weedwhacker from behind a bush near the
apartment complex.

4
his counsel’s performance was deficient and that he suffered prejudice. (Strickland v.
Washington (1984) 466 U.S. 668, 687 (Strickland).) The deficient performance
component of an ineffective assistance of counsel claim requires a showing that
“counsel’s representation fell below an objective standard of reasonableness. [¶] . . .
under prevailing professional norms.” (Id. at p. 688.)
With respect to prejudice, a defendant must show “there is a reasonable
probability”—meaning “a probability sufficient to undermine confidence in the
outcome”—“that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” (Strickland, supra, 466 U.S. at p. 694.) We “need not
determine whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that
course should be followed.” (Id. at p. 697.)
A prosecutor engages in prosecutorial misconduct under state law if he or she uses
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).) When the alleged
prosecutorial misconduct stems from the prosecutor’s remarks or comments made before
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.” (People v.
Samayoa (1997) 15 Cal.4th 795, 841.)
To find prosecutorial error, we must view the challenged statements in the context
of the entire argument and the jury instructions to determine whether there was a
reasonable likelihood the jury understood or applied the comments in an improper or
erroneous manner. (People v. Cortez (2016) 63 Cal.4th 101, 130-131.) “If the
challenged comments, viewed in context, ‘would have been taken by a juror to state or
imply nothing harmful, [then] they obviously cannot be deemed objectionable.’ ” (Id. at
p. 130) “ ‘In conducting this inquiry, we “do not lightly infer” that the jury drew the

5
most damaging rather than the least damaging meaning from the prosecutor’s
statements. ’ ” (People v. Centeno (2014) 60 Cal.4th 659, 667 (Centeno).)
2. Prosecutor’s Final Argument
a. The Claimed Denigrating or Disparaging Statements
During closing, the prosecutor made the following remarks which Mariscal
contends denigrated defense counsel, specifically regarding her examination of Pedro E.:
(1) “[A]t one point when [Pedro E.] was being badgered in his examination, did you
notice that he got a little emotional”; (2) “[I]t might be fun to poke fun at [Pedro E.] and
be ‘Oh, . . . I got you. Were you being truthful then? Are you being truthful now?’ ”;
(3) “[Pedro E.] got to get re-victimized by recounting what it is that happened on that
date”; and (4) “[A]bsolutely the facts in this case come from [Pedro E.]. But to come in
here and make an indictment on [Pedro E.] when he tells you, ‘I don’t remember the
exact words.’ ”
The prosecutor made the following additional remarks which Mariscal claims
personally denigrated defense counsel: (1) “[T]he burden [of proof] is on the People.
And so the proverbial potted plant, the defense has no obligation to put on any evidence.
[¶] But the minute they start asking questions, you can look to the nature of those
questions, the responses they’re eliciting and even the argument you just heard with the
same critical eye as you would to me, as the prosecution, who has the burden in this
case”; and (2) “I impress upon you to hold me to that burden so much so that I didn’t put
up a gimmicky map or graph, because I know that you’re going to get the instructions
exactly as the Court says you need to receive the law in this case.” (Italics added.)
Mariscal also notes the following times the prosecutor accused defense counsel of
seeking to distract the jurors, deflect from the relevant evidence, and distort the issues:
“This is ultimately the defense in the case, ladies and gentlemen. It’s to distract you,
deflect you from the issues in this case and distort the actual issues of this case”; “Are
these actually issues of relevance in this case or are you just being distracted from what

6
actually is the issue here, from that man’s conduct in this case?”; “Is that only meant to
distract you? [¶] It is.”; “Are you being distracted though by that argument? I think
there’s been some deflection that’s happening in this case, this idea that we didn’t locate
the knife”; “This idea that there was a thorough investigation is an attempt to deflect you
from, again, Mr. Mariscal’s conduct . . . .”; “Ladies and gentlemen, that’s a deflection of
the roles in this case, what’s actually at issue here”; and “So, again, is the argument
simply distorting the issues here?”
Under California law, “[i]t is misconduct for the prosecutor in argument to impugn
the integrity of defense counsel or to suggest defense counsel has fabricated a defense.”
(People v. Cash (2002) 28 Cal.4th 703, 732.) In addressing a claim of prosecutorial error
based on disparagement or denigration of defense counsel, we ask whether the
prosecutor’s comments were a fair response to the remarks of defense counsel. (People
v. Pearson (2013) 56 Cal.4th 393, 431-432.)
A prosecutor’s observation “ ‘ “that an experienced defense counsel will attempt
to ‘twist’ and ‘poke’ at the prosecution’s case does not amount to a personal attack on
counsel’s integrity.” ’ ” (People v. Wilson (2005) 36 Cal.4th 309, 338-339.) Even going
so far as to characterize defense’s counsel’s argument as “ ‘ridiculous’ ” and
“ ‘outrageous’ ” is not misconduct. (People v. Peoples (2016) 62 Cal.4th 718, 793.)
Having examined the prosecutor’s allegedly disparaging remarks about defense
counsel’s examination of Pedro E., we conclude—in the context of the record—those
remarks were not misconduct. Rather, the prosecutor was attacking defense counsel’s
efforts to undermine Pedro E.’s credibility, seeking to refocus the jury on the essence of
Pedro E.’s testimony and his demeanor on the stand rather than inconsistencies revealed
by the defense. This was proper argument and not an unfair attack on defense counsel’s
integrity.
Similarly, in the context of this closing argument, we read the reference to the
defense as the “proverbial potted plant” as an inartful attempt to characterize for the jury

7
how, in general, the burden of proof in a criminal trial is borne by the prosecution, while
the defense may rightfully present no evidence, but base its argument for acquittal on the
deficiencies in the prosecution’s case. Even if a negative association could be drawn
from this statement, it is unlikely jurors would do so, especially given defense counsel’s
vigorous and effective examination of Pedro E. While it is possible the jury “ ‘drew the
most damaging rather than the least damaging meaning from the prosecutor’s
statements,’ ” we will not “ ‘ “lightly infer” ’ ” it did so. (Centeno, supra, 60 Cal.4th at
p. 667.)7
The prosecutor’s numerous references to defense counsel’s tactics as efforts to
distract, detract (from), and distort the issues also do not improperly disparage defense
counsel. (See People v. Taylor (2001) 26 Cal.4th 1155, 1166 [prosecutor referring to
defense “tricks” or “moves” in questioning witness credibility do not amount to improper
personal attack on defense counsel’s integrity].) The prosecutor’s message was that the
jury should not doubt Pedro E’s credibility merely because defense counsel’s
cross-examination revealed inconsistencies in Pedro E.’s testimony. The prosecutor did
not accuse defense counsel of factually deceiving the jury or fabricating evidence.
(People v. Zambrano (2007) 41 Cal.4th 1082, 1152 [no misconduct where prosecutor
called defendant’s argument “ ‘lawyer’s game’ ”], disapproved on other grounds in
People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) It is not misconduct to “simply
point[] out that attorneys are schooled in the art of persuasion” as opposed to “improperly
imply[ing] that defense counsel was lying.” (People v. Gionis (1995) 9 Cal.4th 1196,
1216 (Gionis).) As a result, we conclude defense counsel’s decision not to object to these
statements during final argument was reasonable.

7
Although we conclude the prosecutor’s remarks here do not rise to the level of
misconduct, we would encourage all counsel to be mindful of the language they use in
the courtroom. Words like “badgering” invite unnecessary negative connotations by the
finder of fact and thus add heat to, but shed little light on, the important questions to be
resolved.

8
 b. The Claimed Appeals to Sympathy and Fear
Mariscal points to the following statements as improper appeals to the jurors’
sympathy and as an attempt to elicit fear: (1) “If you think that someone who isn’t as
smart and sophisticated and savvy as an attorney doesn’t enjoy the protection of the
law . . . come back with a verdict of an acquittal. [¶] If [Pedro E.] doesn’t deserve the
protections of the law, ultimately—I submit to you—that’s what’s being asked of you,
because he gave different answers and he gave different accounts”; and (2) “My hope is
that you don’t have to experience this more serious type of theft. When someone uses
force or fear and makes you feel that you’re going to get hurt or that your life is in danger
the same way that [] Mariscal did to the victim, [Pedro E.], in this case.”
A prosecutor may not make a Golden Rule argument by appealing “ ‘to the
sympathy or passions of the jury’ ” and “ ‘urging them to imagine the suffering of the
victim.’ ” (People v. Vance (2010) 188 Cal.App.4th 1182, 1192 (Vance).) “[A]n appeal
to the jury to view the crime through the eyes of the victim is misconduct at the guilt
phase of trial; an appeal for sympathy for the victim is out of place during an objective
determination of guilt.” (People v. Stansbury (1993) 4 Cal.4th 1017, 1057.)
The first statement implying that Mariscal should be acquitted if the jurors thought
“that someone who isn’t as smart and sophisticated and savvy as an attorney doesn’t
enjoy the protection of the law” was not an appeal to their sympathy, nor could it be
characterized as either a “deceptive or reprehensible method[] to attempt to persuade . . .
the jury” of Mariscal’s guilt. (Morales, supra, 25 Cal.4th at p. 44.) Again, the prosecutor
was seeking to rehabilitate Pedro E.’s credibility by pointing out “that attorneys are
schooled in the art of persuasion.” (Gionis, supra, 9 Cal.4th at p. 1216.) Accordingly,
there was no reasonable basis for defense counsel to object.
The second statement, in which the prosecutor expressed his “hope” that none of
the jurors will ever be victims of a robbery and “feel that you’re going to get hurt or that
your life is in danger” like Pedro E., presents a closer question. Upon hearing a statement

9
like this, some people would naturally imagine how it would feel to have one’s life
threatened. The next logical step for them would be to consider that the victim likely
experienced feelings similar to their own. At this point, the person is empathizing with
the victim’s emotional state, something the prosecution should not directly invite.
While better left unsaid, the prosecutor’s remarks on this matter were brief and
anodyne. They do not come anywhere near the emotional assault launched by the
prosecutor in a case like Vance, supra, 188 Cal.App.4th at pages 1194 and 1195
[prosecutor committed misconduct by describing suffocation victim’s last feelings in
graphic detail and telling jurors it was their duty to “ ‘relive’ ” them]. “[A] few [such]
remarks in a much longer closing argument” generally will not prejudice the defendant.
(See People v. Seumanu (2015) 61 Cal.4th 1293, 1344 [considering prosecutor’s brief
victim impact statements in case with strong evidence of guilt].) The appeal to view the
offense through Pedro E.’s eyes was tangential at best, and as a result, defense counsel
was reasonable in not objecting to the prosecutor’s remarks.
c. The Claimed Appeals to the Desire to Punish Crime
Mariscal cites the following two statements as improper appeals to the jurors’
desire to ensure that law and order prevail: (1) “It would make sense that someone
doesn’t get a pass for . . . robbery because we don’t find the weapon on them, right?”; and
(2) “[W]hat we’re recognizing here, what the law is acknowledging and what we’re
saying as a society that we won’t accept is for a man to use force or fear to take
something away from someone else.”
It “is permissible [for a prosecutor] to comment on the serious and increasing
menace of criminal conduct and the necessity of a strong sense of duty on the part of
jurors. [Citation.] The prosecution may properly urge his points vigorously as long as he
does not act unfairly.” (People v. Escarcega (1969) 273 Cal.App.2d 853, 862-863.)
The prosecution’s statements were not unfair efforts to spark fear or anger among
the jurors. Rather, they were efforts to explain the force or fear element of robbery to the

10
jury and help it understand that element does not require a finding that Mariscal pulled a
knife out of his waistband or that the police recovered a weapon. There was nothing
inflammatory or inaccurate in the prosecutor’s remarks and thus there was no reason for
defense counsel to object to them.
d. The Claimed Misstatement of Law
Finally, Mariscal contends the prosecutor misstated the law on lesser-included
offenses, as follows: “I want to talk about the lesser included [offense of petty theft] that
you’ve been instructed on. [¶] And the law is going to bend over backward to make sure
all [of] the defendant’s rights are realized. That’s not a critique, that’s how it should be.
But that doesn’t mean that everything you get as an instruction or the law is actually
relevant to this case. [¶] So much so that the very first instruction you were read was
‘Some of these instructions may not apply.’ [¶] So you will receive the instruction of the
lesser-included theft offense. But you have to come to a unanimous verdict of not guilty
as to the charged Count 1 robbery first. [¶] You can’t consider the petty theft until you all
agree, frankly, that everything I’m saying is wrong.” (Italics added.)
“It is misconduct for a prosecutor to misstate the law during argument.” (People
v. Otero (2012) 210 Cal.App.4th 865, 870.) Mariscal argues the prosecutor’s argument
misstated the law on lesser-included offenses pronounced in People v. Kurtzman (1988)
46 Cal.3d 322 (Kurtzman), in which the California Supreme Court held the jury may not
return a verdict on a lesser offense unless it has agreed beyond a reasonable doubt that the
defendant is not guilty of the greater crime charged. However, the Kurtzman court also
concluded the jury should not be prohibited from considering the lesser offenses before
returning a verdict on the greater offenses. (Id. at p. 329.) The prosecutor’s statement
here, i.e., that the jury could not “consider the petty theft” unless there was unanimous
agreement that Mariscal was not guilty of robbery, was plainly a misstatement of the law.
This misstatement, however, was harmless. Prior to the prosecutor delivering his
final argument, the trial court instructed the jury on lesser-included offenses with

11
CALCRIM No. 3517: “If all of you find that the defendant is not guilty of the greater
charged crime of robbery, you may find him guilty of the lesser crime of petty theft if you
are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime.
[¶] A defendant may not be convicted of both a greater and lesser crime for the same
conduct. [¶] Petty theft is a lesser crime of robbery as charged in Count 1. It is up to you
to decide the order in which you will consider each crime and the relevant evidence. But
I can accept a verdict of guilty of a lesser crime, only if you have found the defendant not
guilty of the corresponding greater crime.” (Italics added.) The trial court also
instructed the jury pursuant to CALCRIM No. 200 that “If you believe that the attorneys’
comments on the law conflict with my instructions, you must follow my instructions.”
The jury was provided written copies of these instruction to reference during deliberation.
As noted, under the Kurtzman rule, a trial court may not prohibit the jury from
considering or discussing the lesser offenses before returning a verdict on the greater
offenses. (Kurtzman, supra, 46 Cal.3d at p. 329.) Mariscal cannot demonstrate prejudice
from the prosecutor’s statements because the trial court expressly instructed the jurors
that it was up to them “to decide the order in which you consider each crime and the
relevant evidence. But I can accept a verdict of guilty of a lesser crime, only if you have
found the defendant not guilty of the corresponding greater crime.” (Italics added.) The
jury was further instructed that if it believed an attorney’s comments on the law
conflicted with the court’s instructions, it must follow the court’s instructions. “ ‘[W]e
presume that jurors treat the court’s instructions as a statement of the law by a judge, and
the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’ ”
(People v. Osband (1996) 13 Cal.4th 622, 717, quoting People v. Clair (1992) 2 Cal.4th
629, 663, fn. 8.)
Because the jury was correctly instructed with CALCRIM No. 3517 (and
CALCRIM No. 200), Mariscal cannot establish prejudicial prosecutorial misconduct and
thus defense counsel reasonably elected not to object.

12
 3. Mariscal Was Not Prejudiced by Counsel’s Failure to Object
Even if we assume for argument’s sake that defense counsel’s failure to object to
any of the prosecutor’s final argument was constitutionally deficient, Mariscal cannot
demonstrate prejudice. The prosecution’s case included uncontested percipient testimony
from both the victim, Pedro E., and his coworker, Oscar F., that confirmed the force and
fear element of robbery. The record here reflects that Mariscal fled the scene, discarding
the weedwhacker (and perhaps a knife) before he was arrested. The only real question—
resolved in Mariscal’s favor—was whether he personally used8 a knife in committing the
robbery.
The jury deliberations were also brief and provide no indication that the jury
struggled with any of the factual disputes in the case or the credibility of any of the
witnesses. (See People v. Merriman (2014) 60 Cal.4th 1, 99-100.) In sum, even if
counsel’s performance was deficient, there was no resulting prejudice to Mariscal.
(Strickland, supra, 466 U.S. at p. 687.)
III. DISPOSITION
The judgment is affirmed.

The jury was instructed that “[s]omeone personally uses a dangerous or deadly
8

weapon if he or she intentionally . . . [d]isplays the weapon in a menacing manner.”

13
 _______________________________
Greenwood, P.J.

WE CONCUR:

______________________________________
Elia, J.

______________________________________
Grover, J.

People v. Mariscal
No. H047243