People v. Gutierrez CA1/5 ( 2021 )

Filed 10/1/21 P. v. Gutierrez CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A159878, A159997
v. (Solano County
JESUS GUTIERREZ, JR. et al. Super. Ct. Nos. FCR332353,
FCR332354)
Defendants and Appellants.
A shootout in Fairfield left a man dead, and a jury convicted Jesus
Gutierrez, Jr. and Christopher Vanning Johnson (collectively, defendants) of
second degree murder and found that Johnson personally and intentionally
discharged a firearm causing death during the offense. The trial court
sentenced defendants to state prison.
Defendants appeal, raising several claims of error. We affirm.1
BACKGROUND
In August 2017, Gary Cromwell, Jr. was shot and killed. The
prosecution charged defendants with first degree murder (§ 187, subd. (a))
and alleged Johnson personally and intentionally discharged a firearm
causing death in the commission of the murder (§ 12022.53, subd. (d)).
By separate order this date, we deny defendants’ respective petitions
1
for writ of habeas corpus (case Nos. A168038 and A168039) alleging
ineffective assistance of trial counsel.
1
A.
Prosecution Evidence
Jordan Hendricks and Cromwell were close friends.2 They sold and
used drugs together. At noon on the day of the shooting, Hendricks went to
Cromwell’s house. The two men took Xanax. That evening, they went to
Fairfield to sell marijuana. Cromwell drove the car, a silver Acura with
windows so tinted one could not see through them. Hendricks rode in the
passenger seat. Both men carried firearms.
Cromwell parked the Acura near an apartment complex. The two men
got out of the car and walked around looking for a buyer. But a buyer “never
came,” so the two men walked through an alley back to the Acura. Hendricks
put his gun under the passenger seat. Cromwell drove away.
When they reached a nearby intersection, a dark car pulled up next to
the Acura. The passenger in the dark car had his upper body “hanging out
the window.” He had a “gun pointed” at the Acura. Hendricks grabbed his
gun “for self-defense.” Hendricks could not remember who fired first, but he
heard enough shots being fired that he decided to “shoot back.” Cromwell did
not fire his gun. Seconds later, Cromwell “got shot” in the head. The Acura
accelerated, then crashed.
Hendricks got out of the Acura, threw his gun under a parked car, and
ran to a nearby house to ask for help. The police arrived and arrested him.
Hendricks lied to the police about the incident: he claimed a man named
Leon shot the gun from the Acura. But when confronted by the police with
surveillance video, Hendricks admitted Leon was not in the car and that he—
not Leon—shot the gun. Hendricks told the police that “somebody pulled up
hanging out the window shooting at [him] so [he] shot back.”
2 Hendricks testified under a grant of immunity.
2
On cross-examination, Hendricks acknowledged that both he and
Cromwell knew of Johnson. But Hendricks denied knowing Johnson was in
the dark car. Cromwell’s phone contained YouTube videos with comments
about where to find a man with one leg who was “hiding.” Johnson had a
prosthetic leg.
A. Neighbor’s Testimony
On the night of the shooting, a woman who lived in the neighborhood
saw a “handful” of people—including a man named “Chris”—hanging out by
the white picket fence surrounding her front yard. As Johnson spoke with a
woman in the group, two men came out of an alley across the street. Johnson
appeared to recognize the men. Johnson said, “ ‘Look. There they are.’ ” He
“pulled a gun out of his pants” and held it “by his side.” Johnson seemed
“adrenaline excited” but not nervous or scared. When the men walked in the
other direction, Johnson put the gun away and resumed his conversation.
Minutes later, a black Chevy Impala pulled up by the fence. A woman
got out of the car and went inside a nearby house. Then an Acura drove up,
stopped at the intersection, and turned left. Johnson seemed to recognize the
people in the Acura. He was excited, even more so than when he saw the
men coming out of the alley. He “did not appear . . . scared.” Johnson quickly
got into the passenger seat of the Impala and yelled in a loud voice at the
driver to “ ‘follow the car.’ ” Johnson commanded: “ ‘Go get them. Follow
them. Follow that car.’ ”
As the Impala sped away, Johnson hoisted his body onto the passenger
side windowsill. The top half of Johnson’s body hung out of the passenger
window. Johnson held a gun in his hands. Seconds later, the neighbor heard
gunshots and car tires “screeching.” Then the Impala returned. Johnson
3
“stumbled” out of the car and yelled at the people by the fence to get inside a
nearby house. He was frantic. At that point, the neighbor called 911.
B. Police Investigation
Police officers found Cromwell in the driver’s seat of the Acura,
dead. In Cromwell’s jacket pocket was a gun with a magazine filled to
capacity. Officers found shell casings in the seat, floorboard, and backseat of
the Acura. There were bullet holes in the driver’s side of the car. Nearby,
police officers located the Impala. Gutierrez was in the driver’s seat. The
driver’s side window was shattered. Police found “expended shell casings on
top of the driver’s side doorframe.” The front passenger window was down.
Surveillance video footage from a nearby building showed Hendricks
and Cromwell walking through the alley. Another video showed the Impala
quickly overtake the Acura, pause for a few seconds, and drive away. After
watching the video, a police officer testified there were “six to eight flashes”
that appeared “to be a discharge of firearms” from inside the Acura. The
video did not show the passenger side of the Impala, so the officer could not
“tell if someone [was] hanging out” of the Impala or firing shots from the
passenger side of that car.
In a police interview, Johnson claimed he was the victim of two
shootings. The first shooting occurred when Johnson was on the sidewalk
near the white picket fence: a car “pulled up,” “started shooting,” then sped
“away.” After the shooting, Johnson decided to leave because he thought the
car “was going to come back.” He and Gutierrez got into Gutierrez’s Impala.
Gutierrez drove in the same direction as the car that had shot at them. The
Impala happened to go this way, according to Johnson, because it was the
route to his house. Earlier in the interview, Johnson told police he was
homeless.
4
Johnson described the second shooting: he said the car pulled up next
to the Impala and “said stuff.” Johnson could not see inside the car because
the darkly-tinted windows were up. Then Johnson felt a bullet “hit the
window, hit the car.” The Impala drove away. Johnson denied having—or
shooting—a gun. But he acknowledged he would have “gunshot residue on
[his] hands” from visiting “the shooting range.”
B.
Defense Evidence
Gutierrez testified he drove the Impala to the neighborhood where the
shooting occurred and parked outside a house with a white picket fence.
Gutierrez had a gun that he hid in the Impala. A car with “very tinted”
windows drove by, slowed down, then “sped off.” As soon as the car left,
Johnson “hopped in” the Impala and said, “ ‘Did you see that? Did you see
that car?’ ” Gutierrez responded, “Yes.”
Johnson wanted to see “who was in the car,” so he told Gutierrez to
follow it. Gutierrez followed Johnson’s directions despite knowing that he
would be unable to “see anybody” in the car because the windows were “so
tinted.” Gutierrez did not see a gun in Johnson’s hands. The two men did
not speak while they followed the car.
Gutierrez drove fast and “pulled up beside” the car. Someone from the
car “started shooting” and bullets “were flying” at the Impala. Gutierrez
froze and tried to “take cover.” Johnson said, “ ‘Go. Go. Go. Drive off. Drive
off.’ ” Before he did so, Gutierrez heard two or three gunshots that “sounded
very close to [him].” At that point, Gutierrez knew Johnson had a gun.
Gutierrez did not fire his gun. He drove away and threw his gun in the
bushes. Gutierrez lied to the police about the incident because “a lot of things
5
were going through [his] mind and [he] didn’t really know what to say and
what not to say.”
Johnson’s girlfriend, Victoria C., was with Johnson and Gutierrez in
front of the white picket fence on the day of the shooting. Victoria watched
Johnson get into the Impala. She did not see whether he had anything in his
hands. She did not see him hanging out of passenger window.3 Soon after
Johnson and Gutierrez drove away, Victoria heard gunshots. Then the
Impala returned. Johnson got out of the car and said, “ ‘It just went down.’ ”
Johnson told Victoria to “ ‘run into the house.’ ” She ran into the
backyard, where she, Johnson, and Gutierrez hid. Johnson told Victoria that
an Acura had shot at the Impala. He did not ask Victoria to call 911; he did
not tell her he acted in self-defense. Victoria acknowledged repeatedly lying
to police and to a defense investigator.
A forensic scientist testified that a person hanging his torso out of the
front passenger side window of the Impala would have “a high probability of
getting shot.”
C.
Verdict and Sentence
A jury convicted defendants of second degree murder and found the
firearm enhancement true as to Johnson (§§ 187, subd. (a), 189, subd. (b),
12022.53, subd. (d)). In 2020, the trial court denied Johnson’s motion to
strike the firearm enhancement and sentenced him to 40 years to life in state
prison. It imposed a $10,000 restitution fine (§ 1202.4) on Johnson. The
court sentenced Gutierrez to 15 years to life in state prison and ordered him
A friend of Johnson’s testified Johnson was not hanging out of the
3
window of the Impala and did not have a gun in his hands.
6
to pay a $4,500 restitution fine. Defense counsel did not object to the amount
of the fines.
DISCUSSION
I.
Substantial Evidence Supports the Jury’s Implied Finding that
Johnson Did Not Act in Self-Defense
“When a defendant challenges the sufficiency of the evidence for a jury
finding, we review the entire record in the light most favorable to the
judgment of the trial court. We evaluate whether substantial evidence,
defined as reasonable and credible evidence of solid value, has been disclosed,
permitting the trier of fact to find guilt beyond a reasonable doubt.
[Citation.] ‘ “The standard of review is the same in cases in which the
prosecution relies mainly on circumstantial evidence.” ’ ” (People v. Vargas
(2020) 9 Cal.5th 793, 820.) Under this standard of review, reversal is not
warranted “unless it appears ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support’ ” the conviction. (People v. Bolin
(1998) 18 Cal.4th 297, 331.)
When self-defense is at issue, the prosecution bears the burden of
proving beyond a reasonable doubt that the defendant acted without
justification. (People v. Rios (2000) 23 Cal.4th 450, 462; People v. Lloyd
(2015) 236 Cal.App.4th 49, 63.) Perfect self-defense—a complete defense to
murder—requires the defendant to have an actual and objectively reasonable
belief that bodily injury is about to be inflicted on the defendant. (People v.
Humphrey (1996) 13 Cal.4th 1073, 1082.) “The threat of bodily injury must
be imminent.” (People v. Minifie (1996) 13 Cal.4th 1055, 1064.) “ ‘Fear of
future harm-no matter how great the fear and no matter how great the
likelihood of the harm-will not suffice.” (Humphrey, at p. 1082.)
7
Moreover, it “is well established that the ordinary self-defense
doctrine—applicable when a defendant reasonably believes that his safety is
endangered—may not be invoked by a defendant who, through his own
wrongful conduct (e.g., the initiation of a physical assault or the commission
of a felony), has created circumstances under which his adversary’s attack . . .
is legally justified.” (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.)
Defendants contend the prosecution failed to prove beyond a reasonable
doubt that Johnson did not act in self-defense. But in finding defendants
guilty of second degree murder, the jury impliedly found otherwise and
substantial evidence supports that finding. A neighbor testified Johnson
seemed “adrenaline excited” when he saw Hendricks and Cromwell emerge
from the alley. When Johnson saw the two men, he retrieved a gun and held
it by his side. Later, when Hendricks and Cromwell drove by, Johnson got
“more excited.” At no point did Johnson seem afraid. Johnson yelled at
Gutierrez to “ ‘get’ ” the men and to “ ‘follow’ ” their car. He quickly got into
the Impala. As the Impala sped away, Johnson hung out of the window,
holding a gun in his hand.
Hendricks testified a dark car pulled alongside the Acura. A man—
Johnson—was hanging out of the car’s window “shooting at [him].”
Hendricks heard enough shots being fired that he decided to “shoot back.”
Surveillance video footage showed the Impala aggressively overtaking the
Acura, pausing briefly during the gunfight, and driving away. When
interviewed by police, Johnson gave no indication he feared imminent harm
“that could be met only through the use of deadly force.” (People v. Steskal
(2021) 11 Cal.5th 332, *15.)
Considered together, this evidence easily supports a conclusion that
defendants sought out Hendricks and Cromwell and initiated the
8
confrontation that ended in Cromwell’s death. (People v. Steskal, supra, 11
Cal.5th at *15 [circumstances of the crime indicated the defendant was the
aggressor, “not the other way around”]; People v. Salazar (2016) 63 Cal.4th
214, 244 [ample evidence established the defendant initiated the assault and
supported jury’s rejection of his self-defense claim].) This evidence also
supports a reasonable inference that Johnson did not fear imminent harm
when he directed Gutierrez to go “ ‘get’ ” the two men. (People v. Brady
(2018) 22 Cal.App.5th 1008, 1018 [“there was sufficient evidence for the jury
to reject [the defendant’s] claim of self-defense based on a lack of objective
reasonableness”]; People v. Nguyen (2015) 61 Cal.4th 1015, 1044 [jury could
reasonably conclude the defendant “did not act on the basis of fear alone but
also on a desire to kill his rival”].)
Defendants’ argument to the contrary is premised on a recitation of the
evidence favoring them. This strategy—an improper request to reweigh the
evidence and reevaluate the credibility of witnesses—is unavailing. It “ ‘is
the jury, not the appellate court, which must be convinced of the defendant’s
guilt beyond a reasonable doubt.’ [Citations.] Where the circumstances
reasonably justify the trier of fact’s findings, a reviewing court’s conclusion
the circumstances might also reasonably be reconciled with a contrary
finding does not warrant the judgment’s reversal.” (People v. Zamudio (2008)
43 Cal.4th 327, 357–358, italics added.) Here, the evidence supports the
jury’s rejection of Johnson’s self-defense claim.4
II.
4 Having reached this result, we need not address Gutierrez’s argument
that he is not liable for murder as an aider and abettor because Johnson
acted in self-defense.
9
Substantial Evidence Establishes Gutierrez Aided
and Abetted the Murder
Gutierrez claims he was unaware Johnson intended to kill Cromwell
and, as a result, insufficient evidence establishes he aided and abetted the
murder.
“Second degree murder is the unlawful killing of a human being with
malice aforethought but without the additional elements, such as willfulness,
premeditation, and deliberation, that would support a conviction of first
degree murder.” (People v. Knoller (2007) 41 Cal.4th 139, 151.) Malice “ ‘may
be either express or implied. It is express when there is manifested a
deliberate intention to take away the life of a fellow creature. It is implied,
when no considerable provocation appears, or when the circumstances
attending the killing show an abandoned and malignant heart.’ ” (Id. at
p. 151.)
“[A] person aids and abets the commission of a crime when he . . . ,
acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2)
the intent or purpose of committing, encouraging, or facilitating the
commission of the offense, (3) by act or advice aids, promotes, encourages or
instigates, the commission of the crime.” (People v. Beeman (1984) 35 Cal.3d
547, 561.) In a murder prosecution, this means “the aider and abettor must
know and share the murderous intent of the actual perpetrator.” (People v.
McCoy (2001) 25 Cal.4th 1111, 1118.) But “the aider and abettor need not
have advance knowledge of the crime or the perpetrator’s intent. ‘Aiding and
abetting may be committed “on the spur of the moment,” that is, as
instantaneously as the criminal act itself.’ ” (People v. Frandsen (2019) 33
Cal.App.5th 1126, 1148.)
Here, substantial evidence supports a reasonable inference that
Gutierrez—with knowledge of Johnson’s murderous intent—offered support
10
and encouragement to Johnson, thereby aiding and abetting the murder.
When Johnson saw the Acura, he got into Gutierrez’s car. Armed with a gun,
Johnson yelled at Gutierrez to “ ‘follow’ ” the car and to “ ‘get’ ” Hendricks and
Cromwell. Gutierrez followed Johnson’s directions: he chased after the
Acura and pulled up alongside it. Before driving away, Gutierrez waited
while Johnson shot at the Acura. Nothing suggests Gutierrez was surprised
by, or afraid to interfere with, Johnson’s actions. (People v. Campbell (1994)
25 Cal.App.4th 402, 409.) After the shootout, Gutierrez discarded his own
weapon and hid. (People v. Hoang (2006) 145 Cal.App.4th 264, 270 [the
defendant’s actions after the crime were consistent with aiding and
abetting].) Together, this evidence adequately demonstrates Gutierrez’s
“awareness and complicity in [the] killing.” (People v. Quiroz (2013) 215
Cal.App.4th 65, 76.)
III.
Trial Counsel Was Not Ineffective for Failing to Object
to the Prosecutor’s Closing Argument
Defendants contend the prosecutor erroneously argued she had proven
defendants’ guilt because her theory of the case was “reasonable” and that
trial counsel rendered ineffective assistance by failing to object.
A. Background
During closing argument, the prosecutor urged the jury to evaluate the
circumstantial evidence through the prism of reasonableness and predicted
“when you do that, you are going to find that the only reasonable conclusion,
based off what was presented in this courtroom . . . is that Mr. Johnson
committed first-degree murder and Mr. Gutierrez aided and abetted him in
that . . . murder.”
The prosecutor described Johnson’s response upon seeing the Acura:
he “pulls out the gun . . . gets into Mr. Gutierrez’s car, saying ‘Go get them.’
11
Mr. Gutierrez then drives in a very aggressive fashion in order to catch up,
. . . , high rate of speed, wrong side of the road. What’s the reasonable
inference? That they were having a conversation in that vehicle about what
was happening and what they needed to do and what was going to happen
and what was going on. [¶] Mr. Gutierrez just all of a sudden decided that
he was going to drive down the wrong side of the road at a high rate of speed,
go find out—or who’s in the Acura with dark-tinted windows that you can’t
see in. The Acura windows never came down. You could not see who was in
that car. That’s not reasonable. You don’t do that just to see who was in a
car.” (Italics added.)
During his closing, Johnson’s counsel acknowledged the prosecutor was
“right. You can use circumstantial evidence, and you can make inferences.
But you have to have some evidence upon which to base it, and you have
none. You have to decide based on what evidence you have heard and
through common sense.” Counsel argued “within a second or two . . . is when
. . . Johnson starts to fire in self-defense. . . . And the reasonable
circumstantial evidence was that he fired more shots in the air because
nothing was damaged as he traveled along” the street. (Italics added.)
Referring to the circumstantial evidence jury instruction, Johnson’s
counsel argued: “If you can draw two reasonable conclusions from the
circumstantial evidence and one which points to innocence and one of them
points to guilt, you . . . are required to conclude that the required intent was
not proven. . . . [I]f you think this could have happened and if it did, he was
guilty; this could have happened and if it did he was innocent, you have to
[choose] the one that points toward innocence. Unless you say that story is
just not reasonable. And I think it does all match up. All of the testimony
that you heard from the witnesses that I presented to you matches up with
12
the video evidence and common sense.” (Italics added.)
Gutierrez’s attorney made a similar argument: she claimed the
prosecution evidence was “all circumstantial. . . . And this jury instruction
tells you that if there are two different theories, two reasonable theories and
one points to innocence, you need to find Mr. Gutierrez not guilty. And there
is.” (Italics added.)
On rebuttal, the prosecutor characterized defendants’ version of the
incident as “not reasonable.” (Italics added.) She read the circumstantial
evidence instruction to the jury and said defense counsel had failed to tell the
jury that “ ‘when considering circumstantial evidence, you must accept only
reasonable conclusions and reject any that are unreasonable.’ ” (Italics
added.) The prosecutor continued, “They forgot to tell you that part because
their version is unreasonable.” Then the prosecutor asserted she had proven
her case beyond a reasonable doubt. (Italics added.) Defense counsel did not
object during the prosecutor’s closing argument.
The court instructed the jury on the prosecution’s burden to prove the
elements of the charged crimes beyond a reasonable doubt. (CALCRIM No.
220.) It also instructed the jury on the use of circumstantial evidence to
establish intent. (CALCRIM No. 225.)
B. No Prosecutorial Error
A prosecutor commits prosecutorial error “insofar as her statements
could reasonably be interpreted as suggesting to the jury [the prosecution]
did not have the burden of proving every element of the crimes charged
beyond a reasonable doubt.” (People v. Hill (1998) 17 Cal.4th 800, 831,
overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th
1046, 1069, fn. 13.) It “is error for the prosecutor to suggest that a
13
‘reasonable’ account of the evidence satisfies the prosecutor’s burden of proof.”
(People v. Centeno (2014) 60 Cal.4th 659, 672 (Centeno).)
But it “is permissible” for a prosecutor “to argue that the jury may
reject impossible or unreasonable interpretations of the evidence and to so
characterize a defense theory.” (Centeno, supra, 60 Cal.4th at p. 672.) It is
also “permissible to urge that a jury may be convinced beyond a reasonable
doubt even in the face of conflicting, incomplete, or partially inaccurate
accounts. [Citations.] It is certainly proper to urge that the jury consider all
the evidence before it.” (Ibid.)
To determine whether a prosecutor has committed reversible error “in
this context, we examine (1) whether it was reasonably likely that the
prosecutor’s statements misled the jury on reasonable doubt and (2) 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 conducting this inquiry, we “do not lightly infer”
that the jury drew the most damaging rather than the least damaging
meaning from the prosecutor’s statements.’ ” (Centeno, supra, 60 Cal.4th at
p. 667.)
Here, the prosecutor argued circumstantial evidence—and the
reasonable inferences therefrom—established defendants’ guilt. She argued
the relative reasonableness of the parties’ competing versions of the incident
and characterized defendants’ version as “not reasonable.” (Italics added.)
Then, after reading the circumstantial evidence instruction, the prosecutor
reminded the jury that it “must accept only reasonable conclusions and reject
any that are unreasonable.’ ” (Italics added.) The prosecutor did not,
however, link the reasonableness of the prosecution theory to the reasonable
14
doubt standard. Nothing in the prosecutor’s closing argument “lessened the
prosecution’s burden of proof.” (People v. Romero (2008) 44 Cal.4th 386, 416.)
Defendants’ reliance on Centeno, supra, 60 Cal.4th 659, is unavailing.
There, prosecutor told the jury: “ ‘[Y]our decision has . . . to be a reasonable
account. . . . [Y]ou need to look at the entire picture, not one piece of
evidence, not one witness . . . to determine if the case has been proven beyond
a reasonable doubt.’ ” (Id. at p. 666.) Then the prosecutor compared the
prosecution and defense evidence and asked the jury, “ ‘Is it reasonable to
believe that the defendant is being set-up . . . or [that] he[’s] good for it? That
is what is reasonable. He’s good for it.’ ” (Ibid., italics omitted.) Our high
court held this argument conflated reasonable inferences from the evidence
with the prosecution’s obligation to prove guilt beyond reasonable doubt,
impermissibly leaving the jury “with the impression that so long as her
interpretation of the evidence was reasonable,” the prosecution had met its
burden. (Id. at pp. 671–672.)
Here—and unlike Centeno—the prosecutor did not suggest the jury
could find defendant guilty based on a “reasonable” account of the evidence.
(Centeno, supra, 60 Cal.4th at p. 673.) Consistent with CALCRIM No. 225,
the prosecutor urged the jury to “ ‘accept the reasonable and reject the
unreasonable’ ” in evaluating the circumstantial evidence before it. (Centeno,
at p. 673.) A reasonable juror under the circumstances, having been
instructed by the court that defendants must be acquitted unless the
prosecutor proved the charge beyond a reasonable doubt, would have
understood that the prosecutor was arguing that the prosecution inferences
from the evidence were correct, but that it remained the jury’s task to decide
whether that evidence established each element of the crime beyond a
reasonable doubt.
15
In their reply brief, defendants cite Johnsen, supra, 10 Cal.5th 1116and People v. Cowan (2017) 8 Cal.App.5th 1152 (Cowan), but those cases do
not assist them. In Johnsen, the prosecutor erroneously told the jury “the
reasonable doubt standard requires jurors ‘to point to something in the
evidence that makes them have that doubt’ ” and “misstated the law by
advising the jury 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.’ ” (Johnsen, at p. 1166.) In Cowan, the prosecutor misinformed
the jury that the “presumption of innocence is ‘gone’ prior to the jury’s
deliberation” (Cowan, at p. 1159) and erroneously defined the reasonable
doubt standard as requiring the jury to be “firmly convince[d] that guilt is the
only reasonable interpretation of the evidence.” (Id. at p. 1161.)
This case bears no resemblance to Johnsen and Cowan. Here, the
prosecutor did not mischaracterize the reasonable doubt standard or misstate
the law. Instead, the prosecutor permissibly urged the jury to reject
unreasonable conclusions when considering circumstantial evidence.
(Centeno, supra, 60 Cal.4th at p. 672; CALCRIM No. 225.)
In sum, the prosecutor did not err and, as a result, there was no reason
for defense counsel to object. (People v. Lucero (2000) 23 Cal.4th 692, 732.)
Defendants’ ineffective assistance of counsel claim fails.
C. No Prejudice
Assuming the prosecutor erred, and that defense counsel was
ineffective for failing to object, defendants’ claim fails because they cannot
show prejudice, e.g., “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” (Strickland v. Washington (1984) 466 U.S. 668, 694.) “The
likelihood of a different result must be substantial, not just conceivable.”
16
(Harrington v. Richter (2011) 562 U.S. 86, 112.) “ ‘Surmounting Strickland’s
high bar is never an easy task.’ ” (Id. at p. 105.) Defendants have not
satisfied their burden.
The court instructed the jury on the presumption of innocence,
reasonable doubt, and the prosecution’s burden of proof. It also directed the
jury to follow these instructions in the event of conflicting statements. Jurors
are presumed to follow the court’s instructions. (People v. Holt (1997) 15
Cal.4th 619, 662.) As recited above, the evidence of defendants’ guilt was
strong and the evidence supporting the defense theories was comparatively
weak. Accordingly, it is not reasonably probable the result would have been
different had defense counsel objected to the prosecutor’s closing argument.
(Johnsen, supra, 10 Cal.5th at p. 1167 [no prejudice from defense counsel’s
failure to object to prosecutor’s alleged error in stating reasonable doubt
standard].)
IV.
Defendants’ Challenge to the Restitution Fines Has No Merit
The court imposed a $10,000 restitution fine on Johnson pursuant to
section 1202.4. It imposed a $4,500 restitution fine on Gutierrez. Defendants
argue the court erred by imposing these fines without considering their
ability to pay, and that trial counsel was ineffective for failing to object to the
amount of the fines.
Under section 1202.4, a trial court must impose a restitution fine for
each felony conviction unless there are compelling and extraordinary reasons
for not imposing the fine and the court states those reasons on the record.
(§ 1202.4, subd. (b).) The amount of the fine—$300 to $10,000—is within the
court’s discretion and should be commensurate with the seriousness of the
offense. (Id., subd. (b)(1).) In setting the fine, the court may multiply the
17
minimum fine “by the number of years of imprisonment the defendant is
ordered to serve, multiplied by the number of [the defendant’s] felony”
convictions. (Id., subd. (b)(2).) Inability to pay is one factor a court may
consider when setting the restitution fine. (Id., subds. (c), (d).) Other factors
include the seriousness and gravity of the offense and the circumstances of its
commission. (Id., subd. (d).) A defendant has the burden to demonstrate
inability to pay; express findings on the factors bearing on the amount of the
fine are not required.5 (Ibid.)
Here, defendants were “obligated to object to the amount of the fine[s]
and demonstrate [their] inability to pay anything more than the $300
minimum.” (People v. Frandsen, supra, 33 Cal.App.5th at p. 1154.) Trial
counsel did not object to the amount of the restitution fines, nor raise the
issue of defendants’ purported inability to pay. Thus, defendants forfeited
their challenge to the amount of the fines. (Id. at p. 1153; People v. Smith
(2020) 46 Cal.App.5th 375, 395–396.)
Assuming for the sake of argument the failure to object was ineffective,
defendants’ claim fails because they cannot show prejudice. (Strickland v.
Washington, supra, 466 U.S. at p. 694.) Defendants have not established a
likelihood the court would have imposed lower restitution fines had trial
counsel objected. When it imposed the restitution fines, the court was aware
of defendants’ physical limitations and their educational and work history.
The court was also aware of the seriousness and gravity of the offense and
the circumstances surrounding its commission. Additionally, the record
5The California Supreme Court is considering whether a trial court
must consider a defendant’s ability to pay before imposing or executing fines,
fees and assessments, and if so, which party bears the burden of proof
regarding inability to pay. (People v. Kopp (2019) 38 Cal.App.5th 47 review
granted Nov. 13, 2019, S257844.)
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supports a reasonable inference that defendants have the ability to pay the
restitution fines from probable prison wages. (People v. Aviles (2019) 39
Cal.App.5th 1055, 1076.) Under the circumstances, it is not reasonably
probable the court would have imposed lower restitution fines had trial
counsel objected. Defendants’ ineffective assistance of counsel claim fails.
The Attorney General argues the judgment needs to be corrected to
reflect that defendants’ section 1202.45 parole revocation restitution fines are
imposed and suspended. At the sentencing hearing, the court orally imposed
on each defendant a parole revocation restitution fine under section 1202.45
but failed to suspend the fines. (See § 1202.45, subd. (c) [fine “shall be
suspended” unless parole or supervision “is revoked”].) The sentencing
minute orders state the parole revocation restitution fines are imposed and
stayed, and the abstracts of judgment indicate the fines are imposed and
suspended. “Under the circumstances, we will deem the . . . abstract[s] of
judgment to prevail over the reporter’s transcript. [Citations.] The erroneous
statement in the reporter’s transcript is of no effect.” (People v. Cleveland
(2004) 32 Cal.4th 704, 768; People v. Smith (1983) 33 Cal.3d 596, 599.)
DISPOSITION
The judgment is affirmed.
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_________________________
Rodriguez, J.*
WE CONCUR:
_________________________
Simons, Acting P. J.
_________________________
Needham, J.
A159878, A159997
* Judge of the Superior Court of Alameda County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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