People v. Beltran CA4/2

Filed 7/2/21 P. v. Beltran CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E074877

v. (Super.Ct.No. INF1801844)

GERARDO BELTRAN, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. James T. Latting, Judge.

Affirmed with directions.

Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Heather B.

Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Gerardo Beltran of two counts of robbery and found that he

personally used a firearm in the commission of those offenses. (Pen. Code, §§ 211,

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12022.5, subd. (a).) Beltran also pled guilty to one count of unlawfully possessing

ammunition. (Pen. Code, § 30305, subd. (a).) The trial court sentenced him to a total of

20 years in prison.

Beltran’s accomplice in the robberies, Carlos Alberto Briones, pled guilty and

testified at Beltran’s trial. Beltran argues that the trial court erred by restricting his cross-

examination of Briones. He also argues that the prosecutor misstated the burden of proof

in her rebuttal argument and that defense counsel committed ineffective assistance by

failing to object to the argument. Beltran further contends that the court erroneously

instructed the jurors that they could consider a witness’s certainty in evaluating

eyewitness identification testimony. Lastly, he argues that the abstract of judgment

erroneously fails to state that the court imposed victim restitution jointly and severally.

We order the court to amend the abstract of judgment, but we otherwise affirm.

BACKGROUND

In August 2018, a fruit vendor was selling produce at an intersection in Palm

Springs. A dark-colored four-door car parked near the vendor, and a man exited the

passenger side. The man pointed a gun at the vendor and took the vendor’s money and

cellular phone. The bottom half of the robber’s face was covered by a mask, and he was

wearing a hooded sweatshirt. The robber got into the front passenger seat of the four-

door car, and the car sped away. There was one other person in the car.

A witness who was driving by described the robber as short and heavyset. The

witness called 911 and waited with the vendor for the police to arrive. The vendor told

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police that the robber was roughly five feet three inches tall, bald, and about 40 years old.

At trial, the vendor described the robber as Hispanic and about 35 years old.

In September 2018, two women were waiting for a bus at the intersection where

the fruit stand robbery occurred. A blue four-door car stopped next to them. A man

exited the passenger side of the car, pointed a gun at them, and took one woman’s purse.

The bottom half of the robber’s face was covered by a handkerchief, and his head was

covered by the hood on his hooded sweatshirt. One of the women described the robber as

Hispanic and “a little thick” with dark hair. The other woman said that he was Hispanic

and young with black hair, but she could not recall his height; as to body type, she said

that he was neither “very fat” nor “very slim.” The robber got back into the car, and the

car sped away. The driver and the robber were the only people in the blue car.

A witness who was driving by described the robber as average height and

heavyset. The witness called 911 and reported a partial license plate number for the

robber’s getaway car. A few days later, the same witness saw the getaway car again, and

she wrote down the entire license plate number. The investigating officer ran a search on

that license plate number and found that Briones was the registered owner of the getaway

car.

Briones and Beltran are cousins. Law enforcement interviewed Briones in

October 2018. He was under the influence of methamphetamine and had not slept for

days. He had been using methamphetamine almost every day for four years. Briones

claimed that he told the truth during his interview and that he testified truthfully at trial.

He was not afraid that Beltran was going to retaliate against him. Briones’s goal in

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talking to law enforcement was to appear cooperative. He knew that a witness had seen

his car at the scene of a robbery and that he was in some trouble.

The week before Beltran’s trial, Briones pled guilty to three counts of robbery and

one count of petty theft.1 Briones did not negotiate a disposition with the district

attorney’s office or enter into a plea agreement. The district attorney’s office did not

guarantee him leniency or make any other promises regarding his sentencing or

testimony. He did not receive any benefits from the district attorney’s office for pleading

guilty. The court had sentenced him by the time he testified at trial.

Briones said that he did not plead guilty “to get out of jail.” Rather, he saw it as a

way “to start a new life” and “to move on.” He was “broken” and “dead on the inside

from all the drugs and all the mistakes” that he had made with his family.

In August and September 2018, Briones drove a blue four-door Honda. He

recalled that he and Beltran stopped at a fruit stand. Beltran said that he was getting

some fruit and got out of the passenger side of the car. Briones did not watch Beltran and

was probably looking at his cellular phone. Beltran returned to the car, and they left.

Briones never saw anything covering Beltran’s face. Briones did not ask Beltran where

the fruit was. Briones did not recall what he was thinking; he was under the influence of

methamphetamine at the time and did not remember many things.

1 Beltran’s jury deadlocked on the third robbery count with which he and Briones
were charged, and the court declared a mistrial as to that count (count 2). We do not
discuss the evidence relating to that robbery count.

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 Briones recalled stopping at the bus stop at the same intersection sometime in

September 2018. Beltran asked Briones to pull into the bus stop and said that he was

going to make some money for gas. Briones did not remember whether there was anyone

at the bus stop. He did not watch Beltran and was looking at his cellular phone. Beltran

got back into the car and said, “‘Let’s get the fuck out of here.’” Although Briones

thought that Beltran was joking, he ran a red light and sped away. Briones was “under

the influence of a lot of drugs” and “probably tripping out.” He did not see a purse, and

Beltran never gave him any gas money. Beltran did not have anything on his face when

he got out of the car or when he returned.

Briones said that he did not know Beltran was going to rob anyone at the fruit

stand or the bus stop, he did not realize that the robberies were happening at the time, and

he did not realize that they had occurred even afterward. In short, he did not know if

Beltran actually committed the robberies. He had never seen Beltran with a firearm and

had never heard Beltran talk about having one.

Briones testified that he and Beltran went directly to a casino after the bus stop

incident. The casino is roughly three miles from the bus stop. Briones estimated that it

took 10 to 15 minutes to drive there. Officers were dispatched to the scene of the bus

stop robbery at 4:26 p.m., after the victim went to a nearby store and asked an employee

to call 911.

The prosecutor played the surveillance video from the casino. The video showed

Briones’s car arriving at the casino at 4:32 p.m. The investigating officer identified

Briones and Beltran in the video.

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 The prosecutor showed Briones still photographs from the surveillance video.

Briones identified himself in the photographs and believed that the man with him was

Beltran, but he could not identify the man and said that the photographs did not look like

Beltran because of their poor quality.

Later in September 2018, Briones snatched a woman’s purse from a shopping cart

in a parking lot. He took it “[j]ust for the rush.” He did not recall what he did with the

purse, but he probably threw it away.

Beltran was 26 years old when law enforcement interviewed him in October 2018.

He was five feet seven inches tall and weighed 220 pounds. Beltran told the investigating

officer that he did not know Briones and that he did not have a cousin by that name.

Officers found .38-caliber ammunition at Beltran’s home.

DISCUSSION

I. Cross-Examination of Briones

Beltran argues that the court’s evidentiary rulings improperly restricted his cross-

examination of Briones and violated Beltran’s constitutional rights. The argument lacks

merit.

A. Additional Background

On cross-examination, defense counsel asked Briones whether he pled guilty “to

get out of jail.” The prosecutor objected under Evidence Code section 352 (unlabeled

statutory citations refer to this code), and the court sustained the objection. At a sidebar

conference, defense counsel argued that Briones’s reason for pleading guilty was

relevant, particularly because Briones testified that he had nothing to do with the

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robberies. The prosecutor argued that it was “highly prejudicial” to imply that Briones

pled guilty to get out of jail, because “a sentence still continues for the formal term of

probation.” The court replied: “Right. That’s why I sustained the [section] 352

objection for that reason. I think it’s more prejudicial than probative.” But the court

ruled that defense counsel could ask Briones why he pled guilty. The court explained:

“It’s cross-examination. He can say whatever he wants to. But there is an issue, I think,

in the jury’s mind. Why the heck did you plead guilty if you’re now saying you knew

nothing.”

Defense counsel asked Briones why he pled guilty, and as discussed ante, Briones

testified that he did not plead guilty “to get out of jail,” and he saw it as a way “to start a

new life” and “to move on.” Counsel also asked why he pled guilty if he did not know

whether the robberies actually occurred, and Briones responded: “Because it seemed like

it—it did. And the only way to get out of this mess was to manipulate my way out of it,

and that was going to take a long time. And still when I would get out in—what?—

twelve, whatever my max was—I was still going to have three strikes.” The prosecutor

objected to that testimony and moved to strike it but did not state the basis for her

objection. The court sustained the objection and struck the testimony.

Defense counsel asked Briones if he was “trying to manipulate [his] way to avoid

punishment.” Briones said: “I am getting punished.” Counsel responded: “But you

mentioned something about trying to manipulate.” Briones explained: “No. I said I

didn’t want to manipulate my way out of it.”

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 When defense counsel asked whether Briones was scared of “pointing a finger” at

Beltran, Briones replied: “Not that I’m scared. It’s—I’m paying for my mistakes when I

was under the influence and all the stupidity that I did. And this step in my life was

going to take for me to open my eyes, it might as well—aside from the three strikes, it’s

not a slap on the wrist, man. It’s going to affect me for the rest of my life.” The

prosecutor again objected but did not state the basis for her objection, and she moved to

strike the testimony. The court sustained the objection and struck the testimony.

Later, when the court was discussing exhibits with the parties, the prosecutor

asked to redact the word “strike” from Briones’s plea form. (She had introduced

Briones’s plea form during her direct examination of him.) The prosecutor observed that

the charges against Briones and Beltran were identical, and she argued that the jurors

were not supposed to consider potential sentence or punishment. She explained that she

had objected anytime Briones had mentioned “‘strike[s]’” for the same reason. The court

granted her request to redact “strike” from the plea form, reasoning that “the jury should

not consider punishment in deliberating in this case since the charges are identical.” The

prosecutor later decided not to move the plea form into evidence.

B. No Abuse of Discretion or Prejudice

Beltran contends that the court erroneously precluded him from fully cross-

examining Briones about Briones’s reasons for pleading guilty and Briones’s sentence.

Beltran cites (1) the two rulings striking Briones’s testimony and (2) the ruling sustaining

the objection to the question about whether Briones pled to get out of jail. Beltran fails to

show that those rulings were an abuse of discretion.

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 Evidence about a defendant’s potential punishment is irrelevant. (People v.

Alvarez (1996) 49 Cal.App.4th 679, 687 (Alvarez) [“‘[T]he trier of fact is not to be

concerned with the question of penalty, punishment or disposition in arriving at a verdict

. . .’”].) Such evidence “invites [jurors] to ponder matters that are not within their

province, distracts them from their factfinding responsibilities, and creates a strong

possibility of confusion.” (Shannon v. United States (1994) 512 U.S. 573, 579.) Jurors

might “‘permit their consideration of guilt to be deflected by a dread of seeing the

accused suffer the statutory punishment.’” (Alvarez, supra, at p. 687; accord People v.

Nichols (1997) 54 Cal.App.4th 21, 24.)

Evidence showing the “‘existence or nonexistence of a bias, interest, or other

motive’ on the part of a witness ordinarily is relevant to the truthfulness of the witness’s

testimony.” (People v. Williams (2008) 43 Cal.4th 584, 634, quoting § 780, subd. (f).) A

defendant generally “is entitled to explore whether a witness has been offered any

inducements or expects any benefits for his or her testimony, as such evidence is

suggestive of bias.” (People v. Brown (2003) 31 Cal.4th 518, 544 (Brown).)

While the trial court should give the defense wide latitude to test the credibility of

a prosecution witness, “such latitude does not ‘prevent the trial court from imposing

reasonable limits on defense counsel’s inquiry based on concerns about harassment,

confusion of the issues, or relevance.’” (Brown, supra, 31 Cal.4th at p. 545.) Thus, like

any other relevant evidence, impeachment evidence is excludable under section 352 if its

probative value is substantially outweighed by the probability that the evidence will

confuse the issues, mislead the jury, or create undue prejudice. (People v. Ayala (2000)

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23 Cal.4th 225, 301 (Ayala) [“‘[T]he latitude section 352 allows for exclusion of

impeachment evidence in individual cases is broad’”].)

Even if the court “did not expressly base its ruling on [section 352], we review the

ruling, not the court’s reasoning and, if the ruling was correct on any ground, we affirm.”

(People v. Geier (2007) 41 Cal.4th 555, 582, overruled on another ground by Melendez-

Diaz v. Massachusetts (2009) 557 U.S. 305; see also Ayala, supra, 23 Cal.4th at pp. 300-

301 [concluding that the trial court implicitly ruled the excluded evidence would mislead

the jury, and reviewing the ruling under section 352].) We review the trial court’s

evidentiary rulings for abuse of discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9.)

The court did not abuse its discretion by limiting the cross-examination of

Briones. It did not prevent Beltran from questioning Briones about his reasons for

pleading guilty. The court sustained the prosecutor’s objection when defense counsel

asked if Briones pled guilty “to get out of jail.” At the sidebar conference, the court ruled

that defense counsel could not phrase the question that way, but counsel could ask why

Briones pled guilty. Briones answered that question. Beltran does not explain how the

court erred by directing defense counsel to phrase the question in that manner. He

suggests that the court precluded him from establishing that Briones received probation,

but that was not the question defense counsel asked. And Beltran does not cite any point

at which he tried to introduce evidence that Briones received probation, and the court

excluded it. Beltran cannot prevail on appeal by challenging rulings that the court never

made. (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1303-1304 [the defendant failed

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to show the court erroneously excluded a witness’s testimony, because defense counsel

never proffered the testimony, and there was no ruling excluding it].)

Moreover, the court did not abuse its discretion by striking Briones’s references to

three strikes and a potential 12-year sentence. The evidence was excludable under

section 352. Briones’s view of his potential punishment was relevant to show bias in

favor of the People or motive to lie, but the probative value of the evidence was minimal.

It would have added little to the other evidence showing such bias or motive. (See

People v. Balcom (1994) 7 Cal.4th 414, 423 [evidence that was cumulative on an issue

had limited probative value].) Briones did not testify pursuant to any plea agreement or

negotiated disposition, and the People did not offer him any benefits in exchange for his

guilty plea. But he testified that he knew he was in trouble when the investigating officer

interviewed him, and he knew that the officer had connected his car to the robbery scene.

He said that he wanted to appear cooperative. The investigating officer testified that

Briones was “really forthcoming” during the interview. Thus, even without the stricken

testimony, the jurors could reasonably infer from the evidence that Briones was

cooperating with law enforcement in the hope that he would be treated leniently.

The court reasonably concluded that the minimal probative value of the evidence

was outweighed by the risk of confusing or misleading the jury and undue prejudice.

While Briones’s stricken testimony referred to his own punishment, the jurors knew that

he had pled guilty to the same three robberies for which Beltran was on trial. They could

reasonably infer that Beltran was facing similar punishment. Admission of the evidence

thus risked confusing the issues and misleading the jurors into consideration of Beltran’s

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potential punishment, which was irrelevant. The evidence was also unduly prejudicial in

that it invited the jurors to reward the defense because of an emotional reaction to

Beltran’s potential punishment. (People v. Valdez (2012) 55 Cal.4th 82, 145 [test for

prejudice is “whether the evidence inflames the jurors’ emotions, motivating them to use

the information, not to evaluate logically the point upon which it is relevant, but to

reward or punish the defense because of the jurors’ emotional reaction”].)

Beltran relies on People v. Mickle (1991) 54 Cal.3d 140 (Mickle), but that case is

distinguishable. There, a prosecution witness had three criminal cases pending against

him. (Id. at pp. 160, 167.) He wrote letters to the judges in those three cases, offering to

inform on various individuals in exchange for leniency and explaining that he feared

injury in prison. (Id. at p. 167.) The Mickle court held that the trial court erred by

excluding the letters as irrelevant. (Id. at p. 168.) The letters were relevant impeachment

evidence because they implicitly contradicted the witness’s claim that he was testifying

for “purely unselfish reasons,” and they “suggested that he had a heightened interest in

currying favor with the prosecution on parole and avoiding the risk of harm he associated

with imprisonment.” (Ibid.) Still, the Mickle court concluded that exclusion of the letters

and other impeachment evidence was harmless. (Id. at p. 169.)

Mickle held that the letters were relevant, but it did not address whether the letters

were nevertheless excludable under section 352, as was the case here. Mickle thus does

not persuade us that the trial court erred.

In any event, even if the court abused its discretion, any error was harmless. It is

not reasonably probable that Beltran would have achieved a more favorable result if the

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court had admitted the details about Briones’s potential punishment. (People v. Watson

(1956) 46 Cal.2d 818, 836 (Watson).) That is because, as already described, other

evidence established Briones’s interest in cooperating with law enforcement from the

time of his interview. He knew that he was facing criminal liability then, regardless of

the precise punishment that he was facing. His arguable bias and motive to lie arose at

that point. Indeed, defense counsel argued in closing that Briones had “a reason to lie . . .

back when he was talking to” the investigating officer. The details of his potential

punishment would have added little to that picture of Briones’s arguable bias and motive

to lie. (People v. Cornwell (2005) 37 Cal.4th 50, 94 [any error restricting cross-

examination concerning witness’s criminal liability was harmless “because of the ample

other evidence that came before the jury suggesting reasons to believe that [the witness’s]

cooperation with law enforcement was not altruistic and that his testimony was the

product of his hope to secure early release from prison”], disapproved on another ground

by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

For all of these reasons, the challenged evidentiary rulings did not amount to an

abuse of discretion, and even if they did, any error was harmless.

C. No Violation of Constitutional Rights

Contrary to Beltran’s assertion, the court’s evidentiary rulings did not violate his

federal constitutional rights to due process, to confront the witnesses against him, and to

present a defense.

“[O]nly evidentiary error amounting to a complete preclusion of a defense violates

a defendant’s federal constitutional right to present a defense.” (People v. Bacon (2010)

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50 Cal.4th 1082, 1104, fn. 4.) And the exclusion of evidence does not violate the

defendant’s right to due process unless it renders the trial fundamentally unfair. (People

v. Quartermain (1997) 16 Cal.4th 600, 626 (Quartermain).) Here, the challenged rulings

“‘merely rejected certain evidence concerning the defense.’” (People v. Cowan (2010)

50 Cal.4th 401, 473.) They did not prevent Beltran from impeaching Briones altogether

or render his trial unfair. Beltran cross-examined Briones at length about Briones’s

reasons for pleading guilty, his methamphetamine use, his behavior during his law

enforcement interview, his claim that he was unaware of the robberies, his memory of

details from the robberies, his misdemeanor theft charge, and other topics. Under these

circumstances, there was no violation of Beltran’s right to present a defense or right to

due process.

Similarly, there was no violation of Briones’s right of confrontation. “A trial

court’s limitation on cross-examination pertaining to the credibility of a witness does not

violate the confrontation clause unless a reasonable jury might have received a

significantly different impression of the witness’s credibility had the excluded cross-

examination been permitted.” (Quartermain, supra, 16 Cal.4th at pp. 623-624.)

For reasons already discussed, a reasonable jury would not have formed a

significantly different impression of Briones’s credibility if the court had admitted the

stricken testimony: Briones’s potential punishment added little to the other evidence

permitting a reasonable inference that he cooperated in the hope of being treated

leniently. In addition, Briones’s credibility was impeached by his unlikely claim that he

did not realize the robberies had occurred, his admitted theft of a woman’s purse without

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any involvement by Beltran, and his methamphetamine use. The little effect that the two

stricken answers might have had would not have resulted in a significantly different

impression of his credibility. There was thus no confrontation clause violation.

(Quartermain, supra, 16 Cal.4th at p. 624 [no confrontation clause violation, given that

the witness’s credibility was already extensively impeached].)

In sum, the challenged evidentiary rulings did not violate Beltran’s constitutional

rights.

II. Prosecutorial Misconduct and Ineffective Assistance Claim

Beltran argues that the prosecutor committed prejudicial misconduct by misstating

the burden of proof in her rebuttal argument. As Beltran acknowledges, defense counsel

did not object to the claimed misstatements. Beltran therefore forfeited the prosecutorial

misconduct argument. (People v. Thornton (2007) 41 Cal.4th 391, 454.) We

nevertheless reach the merits of the misconduct claim because Beltran argues that counsel

rendered ineffective assistance by failing to object. The argument lacks merit.

A. Additional Background

Beltran’s argument on appeal involves CALCRIM No. 224, which states: “Before

you may rely on circumstantial evidence to conclude that a fact necessary to find the

defendant guilty has been proved, you must be convinced that the People have proved

each fact essential to that conclusion beyond a reasonable doubt.

“Also, before you may rely on circumstantial evidence to find the defendant

guilty, you must be convinced that the only reasonable conclusion supported by the

circumstantial evidence is that the defendant is guilty. If you can draw two or more

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reasonable conclusions from the circumstantial evidence, and one of those reasonable

conclusions points to innocence and another to guilt, you must accept the one that points

to innocence. However, when considering circumstantial evidence, you must accept only

reasonable conclusions and reject any that are unreasonable.”

The prosecutor began her closing argument by observing that the jurors were there

“to determine if the evidence has proved to you beyond a reasonable doubt that [Beltran

is] guilty of the three robberies.” She told them that the court would instruct them on the

law and proceeded to review the evidence against Beltran.

In defense counsel’s closing argument, he emphasized the “beyond a reasonable

doubt” standard at least 14 times and suggested that the People had not carried their

burden. Defense counsel also quoted portions of CALCRIM No. 224. He used the

casino surveillance video to illustrate the concepts. Counsel argued that if the jurors

thought it was reasonable that the video depicted someone other than Beltran—someone

who merely had a “similar body type”—then the jurors had to indulge that reasonable

interpretation of the evidence, and they could not use that video to convict Beltran.

In her rebuttal argument, the prosecutor stated:

“Counsel talked to you about [CALCRIM] instruction [No.] 224, circumstantial

evidence. And in considering circumstantial evidence, if one explanation points to

innocence and one points to guilt, you must pick the one that points to innocence, but you

can only consider the reasonable conclusions.

“So let’s consider. Is it reasonable that there was multiple people with a similar

description in a small vicinity in less than a three-week period even at the same

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intersection bearing the same short and stocky Hispanic male resemblance all being

driven by Mr. Briones and all similarly having the same firearm, having the same MO,

targeting the same type of vulnerable victim? Or is it reasonable that Mr. Beltran was, in

fact, the only passenger in Mr. Briones’s vehicle on September 18th at the bus stop, at the

casino, . . . and at the fruit stand?

“Isn’t it reasonable that all the circumstantial evidence in combination with Mr.

Briones’[s] testimony—it’s the only reasonable conclusion that Mr. Beltran is guilty as

charged. That’s why I ask you to render the only true and just verdict, guilty on all

counts . . . .”

The prosecutor ended her rebuttal argument right after that statement, and the

court proceeded to instruct the jury. Among other things, the court instructed the jurors

that they had to follow the law as the court explained it, and if they believed that the

attorneys’ comments on the law conflicted with the court’s instructions, they had to

follow the court’s instructions. (CALCRIM No. 200.) The court also instructed the

jurors on the presumption of innocence and the People’s burden of proving guilt beyond a

reasonable doubt. (CALCRIM No. 220.) And the court instructed the jurors with

CALCRIM No. 224, regarding circumstantial evidence.

B. No Prejudicial Misconduct

“‘[I]t is improper for the prosecutor to misstate the law generally [citation], and

particularly to attempt to absolve the prosecution from its prima facie obligation to

overcome reasonable doubt on all elements.’” (People v. Cortez (2016) 63 Cal.4th 101,

130 (Cortez).) The prosecutor may argue that the jury should reject unreasonable

17
interpretations of the evidence. (People v. Centeno (2014) 60 Cal.4th 659, 672.) The

prosecutor may also characterize a defense theory as an unreasonable interpretation of the

evidence. (Ibid.) And the prosecutor may urge the jury to accept reasonably possible

interpretations of the evidence. (Ibid.) But the prosecutor may not leave “the jury with

the impression that so long as her interpretation of the evidence [is] reasonable,” the

People have carried their burden of proof. (Ibid.) That is because “[i]t is not sufficient

that the jury simply believe that a conclusion is reasonable. It must be convinced that all

necessary facts have been proven beyond a reasonable doubt.” (Ibid.)

To establish prosecutorial misconduct on the basis of comments 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.”’ [Citation.] 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.’” (Cortez,

supra, 63 Cal.4th at p. 130.)

Like most other errors, prosecutorial misconduct is subject to prejudice analysis.

(People v. Shazier (2014) 60 Cal.4th 109, 127 (Shazier).) “Misconduct that does not

constitute a federal constitutional violation warrants reversal only if it is reasonably

probable the trial outcome was affected.”2 (Ibid.) When the defendant claims that the

2 Improper comments do not violate the federal Constitution unless “they constitute
a pattern of conduct so egregious that it infects the trial with such unfairness as to make
the conviction a denial of due process.” (Cortez, supra, 63 Cal.4th at p. 130.) Beltran

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prosecutor misstated the burden of proof, we ask “whether there is ‘a reasonable

probability that the prosecutor’s argument caused one or more jurors to convict defendant

based on a lesser standard than proof beyond a reasonable doubt.’” (People v. Johnsen

(2021) 10 Cal.5th 1116, 1165-1166 (Johnsen).)

In this case, much of the prosecutor’s argument was proper. She asked the jury to

consider whether Beltran’s interpretation of the evidence was reasonable, and she

suggested that it was not. Similarly, she asked the jury to consider whether her

interpretation of the evidence was reasonable, and she suggested that it was. But her final

comments may have given the impression that the jurors could find Beltran guilty if they

merely found her interpretation of the evidence reasonable: “Isn’t it reasonable that all

the circumstantial evidence in combination with Mr. Briones’[s] testimony—it’s the only

reasonable conclusion that Mr. Beltran is guilty as charged. That’s why I ask you to

render the only true and just verdict, guilty on all counts . . . .”

In Centeno, our Supreme Court held that similar comments were improper.

(Centeno, supra, 60 Cal.4th at pp. 671-673.) Centeno was a sexual abuse case. In the

prosecutor’s rebuttal argument, she stated: “‘Is it reasonable to believe that a shy, scared

child who can’t even name the body parts made up an embarrassing, humiliating sexual

abuse, came and testified to this in a room full of strangers or the defendant abused Jane

Doe. That is what is reasonable, that he abused her.’” (Id. at p. 671.) She continued:

does not allege a pattern of such conduct here. Rather, he points to a single instance in
the rebuttal argument. (Shazier, supra, 60 Cal.4th at p. 151 [single instance of
misconduct plus one “possible” instance did not constitute a pattern of misconduct].)
Accordingly, the more stringent prejudice test for constitutional errors does not apply.

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“‘Is it reasonable to believe that the defendant is being set-up in what is really a very

unsophisticated conspiracy led by an officer who has never met the defendant or he[’s]

good for it? That is what is reasonable. He’s good for it.’” (Id. at p. 672.)

The Centeno court observed that much of the prosecutor’s argument was

unobjectionable. (Centeno, supra, 60 Cal.4th at p. 672.) She was permitted to urge the

jury to accept the reasonable and reject the unreasonable. (Id. at p. 673.) But she had

gone beyond that. She had “repeatedly suggested that the jury could find defendant guilty

based on a ‘reasonable’ account of the evidence.” (Ibid.) The court concluded that those

remarks had “clearly diluted the People’s burden” of proof. (Ibid.)

Here, even if the prosecutor improperly suggested that the jurors could find

Beltran guilty on the basis of a reasonable account of the evidence, the comments did not

prejudice Beltran. It is not reasonably probable that her argument caused one or more

jurors to convict Beltran on a standard lower than proof beyond a reasonable doubt.

(Johnsen, supra, 10 Cal.5th at pp. 1167-1168 [holding that the prosecutor’s

misstatements about the burden of proof were not prejudicial]; People v. Ellison (2011)

196 Cal.App.4th 1342, 1353 [same].)

The prosecutor noted the People’s burden of proof beyond a reasonable doubt in

her closing argument. Defense counsel stressed the People’s burden of proof numerous

times in his closing argument. In contrast, the prosecutor’s objectionable rebuttal

remarks consisted of a single unfinished sentence, which she followed with a legally

proper argument that guilt was the only reasonable inference from the evidence. The

prosecutor framed her remarks as a response to defense counsel’s discussion of

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CALCRIM No. 224, not as an illustration of the People’s burden of proof. The remarks

came at the end of the prosecution’s rebuttal argument, after which the court instructed

the jurors to follow the law as the court explained it and to disregard any attorneys’

comments that conflicted with the court’s instructions. The court then properly instructed

the jurors on the presumption of innocence and the People’s burden to prove Beltran’s

guilt beyond a reasonable doubt. In particular, the court told the jurors that “[p]roof

beyond a reasonable doubt is proof that leaves you with an abiding conviction that the

charge is true.” (CALCRIM No. 220.) We presume that the jurors understood and

followed the court’s instructions and did not draw the most damaging inference from the

prosecutor’s brief argument. (Shazier, supra, 60 Cal.4th at p. 150; accord People v. Bell

(2019) 7 Cal.5th 70, 111-112.) On this record, there is no reasonable probability that the

prosecutor’s isolated remarks caused the jury to convict Beltran on something lower than

the proper standard.

Beltran analogizes this case to Centeno, but there the court based its prejudice

finding on materially different circumstances. The Centeno prosecutor committed two

errors in her rebuttal argument. The court devoted much of its error discussion to the first

of those errors—the prosecutor’s use of a diagram and a hypothetical to attempt to

illustrate proof beyond a reasonable doubt. (Centeno, supra, 60 Cal.4th at pp. 665, 667-

671.) The prosecutor displayed an outline of the shape of California and posited a

hypothetical criminal trial in which the issue was, “‘[W]hat state is this[?]’” (Id. at

p. 665.) She described the testimony of hypothetical witnesses who imparted some

accurate information but also some incomplete or inaccurate information about the state.

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(Ibid.) She then argued that regardless of the incomplete, inaccurate, or missing

information, the jury could “‘still reach a decision beyond a reasonable doubt’” that the

state was California. (Ibid.) The court reasoned that the “use of an iconic image like the

shape of California . . . [was] a flawed way to demonstrate the process of proving guilt

beyond a reasonable doubt.” (Id. at p. 669.) The image and the hypothetical necessarily

drew on the jurors’ preexisting knowledge rather than on the evidence, trivialized the

deliberative process, encouraged the jurors to guess or to jump to a conclusion, and

oversimplified the process. (Id. at pp. 669-671.)

The Centeno court held that the combination of the improper hypothetical and the

other improper argument prejudiced the defendant. (Centeno, supra, 60 Cal.4th at

pp. 676-677.) There was no reason for the jurors to reject the improper hypothetical—it

did not contradict the trial court’s instruction on proof beyond a reasonable doubt but

purported to illustrate the standard. (Id. at p. 676.) The prosecutor introduced “further

confusion by suggesting that it was ‘reasonable’ to believe that defendant was guilty.”

(Ibid.) While the trial court gave a few instructions after the rebuttal argument, it gave

the majority of its instructions the day before closing arguments, including the instruction

defining proof beyond a reasonable doubt (CALCRIM No. 220). (Id. at pp. 664-665,

676-677.) “As a result, the prosecutor’s argument was the last word on the subject.” (Id.

at p. 677.)

Unlike the Centeno prosecutor, the prosecutor here did not use an improper

hypothetical to attempt to define proof beyond a reasonable doubt. The prosecutor did

not purport to define the concept at all. And even if she had, the prosecutor’s rebuttal

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argument was not the last word on the subject. The court instructed the jury right after

the argument. This case is more like Johnsen, in which our high court held that the

prosecutor’s misconduct relating to the burden of proof did not prejudice the defendant.

(Johnsen, supra, 10 Cal.5th at pp. 1167-1168.) The Johnsen prosecutor misstated the law

by arguing (1) that “the reasonable doubt standard require[d] jurors ‘to point to

something in the evidence that makes them have that doubt,’” and (2) that “in evaluating

whether a perceived doubt is reasonable, a ‘juror should be able to convince his or her

fellow jurors that the doubt is reasonable.’” (Id. at p. 1166.) The Johnsen court

concluded that the defendant suffered no prejudice because after the arguments, the trial

court properly instructed the jurors on reasonable doubt and directed them to follow the

instructions in the event of any conflicting statements. (Id. at pp. 1164, 1167.)

For all of these reasons, any misstatement of the law by the prosecutor was not

prejudicial to Beltran. It is not reasonably probable that any misstatement caused the

jurors to convict him on a standard of proof lower than beyond a reasonable doubt.

C. No Ineffective Assistance

To prevail on a claim of ineffective assistance of counsel, the defendant “‘must

show that counsel’s performance was deficient, and that the deficiency prejudiced the

defense.’” (Johnsen, supra, 10 Cal.5th at p. 1165.) But “defense counsel cannot be

considered ineffective . . . for failing to make objections to misconduct” that caused the

defendant no prejudice. (People v. Boyette (2002) 29 Cal.4th 381, 437.) Because any

misconduct by the prosecutor did not prejudice Beltran, his ineffective assistance claim

necessarily fails.

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III. Eyewitness Certainty Instruction

Beltran argues that the court prejudicially erred and violated his constitutional

rights by instructing the jurors that they could consider a witness’s certainty in evaluating

eyewitness testimony identifying the defendant. (CALCRIM No. 315.) We reject the

argument.

CALCRIM No. 315 states in relevant part: “You have heard eyewitness testimony

identifying the defendant. As with any other witness, you must decide whether an

eyewitness gave truthful and accurate testimony.” The instruction sets forth numerous

questions that the jury should consider in evaluating identification testimony. (Ibid.)

One question is: “How certain was the witness when he or she made an identification?”

(Ibid.) Beltran contends that the instruction was “legally and scientifically incorrect”

because studies have shown a weak relationship between certainty and the accuracy of an

identification.

As a preliminary matter, Beltran acknowledges that defense counsel failed to

object to the instruction, but he urges us to excuse the failure because any “‘objection

would have been futile or wholly unsupported by substantive law then in existence.’”

(People v. Brooks (2017) 3 Cal.5th 1, 92.) We agree that any objection would have been

futile or wholly unsupported by the substantive law then in existence: At the time, our

Supreme Court had approved of the instruction on the eyewitness certainty factor.

(People v. Sanchez (2016) 63 Cal.4th 411, 461-462.) The court therefore was bound to

reject any argument against the instruction.

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 Our Supreme Court recently reconsidered the eyewitness certainty instruction in

People v. Lemcke (2021) 11 Cal.5th 644 (Lemcke). Lemcke rejected the defendant’s

argument that the instruction violated his due process rights. (Id. at pp. 646-647, 654-

661.) The Lemcke court nevertheless acknowledged that the instruction had “the

potential to mislead jurors,” given the “near unanimity in the empirical research that

‘“under most circumstances, witness confidence or certainty is not a good indicator of

identification accuracy.”’” (Id. at p. 665.) But because of the complexities involved in

determining how to revise the instruction, the court stopped short of attempting to rewrite

it. (Id. at p. 668.) Instead, the court referred the matter to the Judicial Council and the

council’s Advisory Committee on Criminal Jury Instructions “to evaluate whether or how

the instruction might be modified to avoid juror confusion regarding the correlation

between certainty and accuracy.” (Id. at p. 647; accord id. at p. 668.) In addition, the

court exercised its supervisory powers to “direct that until the Judicial Council has

completed its evaluation, trial courts should omit the certainty factor from CALCRIM

No. 315 unless the defendant requests otherwise.” (Id. at pp. 647-648; accord id. at

p. 669.)

For the reasons set forth in Lemcke, we reject Beltran’s due process argument.

The instruction did not expressly equate certainty with accuracy. (Lemcke, supra, 11

Cal.5th at p. 657.) Even if it were susceptible to that interpretation, Beltran could have

proffered expert testimony combatting the interpretation, as the Lemcke defendant did.

(Id. at pp. 657-658.) Moreover, the court’s other instructions undercut any argument that

the certainty instruction lowered the People’s burden of proof. (Id. at p. 658.) The court

25
instructed the jurors that Beltran was presumed innocent and that the People had the

burden of proving guilt beyond a reasonable doubt (CALCRIM No. 220). (Lemcke, at

p. 658.) And the court instructed the jurors that “[p]eople sometimes honestly . . . make

mistakes about what they remember” (CALCRIM No. 226), that the jurors were

responsible for “judg[ing] the credibility or believability of the witnesses,” and that the

People had ‘“the burden of proving beyond a reasonable doubt that it was [Beltran] who

committed the crime”’ (CALCRIM No. 315). (Lemcke, at p. 658.) Finally, Beltran had

an opportunity to cross-examine the witnesses who he claims identified him with

certainty—Briones and the investigating officer. (Id. at p. 660.) Accordingly, the

eyewitness certainty instruction did not render Beltran’s trial fundamentally unfair or

otherwise violate his due process rights. (Id. at p. 661.)

Moreover, to the extent that Lemcke disapproved of the existing certainty

instruction, any claimed error was harmless under any standard. (Chapman v.

California (1967) 386 U.S. 18, 24 [“harmless beyond a reasonable doubt” standard for

constitutional errors]; Watson, supra, 46 Cal.2d at p. 836 [reasonable probability standard

for state law errors].)

Beltran argues that the certainty instruction would have influenced the jury with

respect to identifications by Briones and the investigating officer, but the certainty

instruction did not apply to the testimony on which he relies. First, Beltran claims that

Briones expressed certainty about whether Beltran was with him during the fruit stand

robbery. That is incorrect. Beltran cites the following exchange between the prosecutor

and Briones about Briones’s memory of the events:

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 “Q. BY [the prosecutor]: With, I guess, your affected memory of the specifics,

are you able to remember that it was, in fact, Mr. Beltran with you at this time?

“A. Yes.

“Q. Is there anyone else with you?

“A. No.

“Q. Are you certain of that?

“A. Yes.

“Q. So that you remember?

“A. Yeah.”

Briones thus testified that he was certain there was no one besides Beltran with

him during the fruit stand robbery. His expressed certainty related to his memory of

whether he had other companions that day. He did not express certainty about an

eyewitness identification of Beltran, so the jurors would not have applied the eyewitness

identification instruction to that testimony. The court instructed the jurors that some of

its instructions may not apply and to follow the instructions that do apply to the facts.

(CALCRIM No. 200.) We presume that the jurors understood and followed that

instruction. (Shazier, supra, 60 Cal.4th at p. 150.)

Second, Beltran points out that the investigating officer identified Beltran in the

casino surveillance video. The investigating officer did not state whether he was certain

about the identification. Even if he had, it was clear that the investigating officer was not

an eyewitness to the robberies or the events at the casino that day. The prosecutor played

the surveillance video for the jurors, the court admitted the video into evidence, and the

27
jurors could judge for themselves whether the video depicted Beltran. The jurors would

not have applied an instruction about eyewitness identification to the officer’s testimony

about the video.

In sum, the court did not violate Beltran’s due process rights by instructing the

jurors on the eyewitness certainty factor. And even if the instruction were erroneous, the

jurors would not have applied the instruction as Beltran contends, so any error was

harmless.3

IV. Statement of Victim Restitution in the Abstract of Judgment

The court ordered Beltran to pay victim restitution in the amount of $2,555.00.

The court specified that Beltran and Briones were jointly and severally liable for the

victim restitution. Beltran contends, and the People agree, that the abstract of judgment

erroneously fails to reflect the joint and several liability. (People v. Blackburn (1999) 72

Cal.App.4th 1520, 1535 [ordering the abstract of judgment corrected to reflect joint and

several liability for victim restitution].)

The abstract of judgment merely contains a typographical error. Section 13 of the

abstract sets forth victim restitution. The last sentence fragment of that section states:

“Joint and severed liability.” The minute order of the sentencing hearing contains the

same typographical error. In an abundance of caution, we order the sentencing minute

3 Beltran argues that he was cumulatively prejudiced by the restriction of Briones’s
cross-examination, the prosecutor’s misconduct, and the claimed instructional error.
Even if the prosecutor’s comments were improper, there were no other errors to
cumulate. (People v. Livingston (2012) 53 Cal.4th 1145, 1179.)

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order and abstract of judgment amended to reflect that Beltran’s liability for victim

restitution is joint and several, not joint and severed.

DISPOSITION

The trial court shall prepare an amended sentencing minute order and an amended

abstract of judgment reflecting that Beltran’s liability for victim restitution is joint and

several, not joint and severed. The trial court is directed to send a copy of the amended

abstract of judgment to the Department of Corrections and Rehabilitation. As modified,

the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MENETREZ
J.

We concur:

McKINSTER
Acting P. J.

RAPHAEL
J.

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