People v. Segura CA2/3 ( 2024 )

Filed 1/24/24 P. v. Segura CA2/3
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B317636
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. VA153120-03
v.
GUILLERMO ISLAS SEGURA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Lee W. Tsao, Judge. Sentence vacated;
remanded with instructions.
Larenda R. Delaini, under appointment by the Court
of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Idan Ivri and Theresa A. Patterson,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
The People filed an information charging Guillermo
Islas Segura with the robbery of two victims and assault
with a firearm. The information also alleged various firearm
enhancements and a prior strike. Months before trial, and
a week after newly-elected District Attorney George Gascón
took office, the prosecutor moved to dismiss the firearm and
strike prior allegations based on Gascón’s “Special Directive
20-08.” The court denied the motion. The case went to trial,
and the jury convicted Islas Segura as charged and found true
the enhancement allegations.
On appeal, relying on Nazir v. Superior Court (2022) 79
Cal.App.5th 478 (Nazir), decided by our colleagues in Division
Seven, Islas Segura argues the court erroneously believed it
could not rely on the district attorney’s special directive to grant
the People’s motion to dismiss.1 He also argues the prosecutor
committed misconduct by referring to a Christmas snow globe
during closing argument. We reject Islas Segura’s misconduct
argument, but we agree with him that Nazir counsels us to
remand this case for further proceedings. Accordingly, we vacate
the sentence and remand the case for the trial court to reconsider
the People’s motion to dismiss. We affirm in all other respects.
FACTS AND PROCEDURAL BACKGROUND
1. Islas Segura and two cohorts rob two victims
On March 26, 2020, Michael Moreno and Mario Vargas
were eating pizza outside a restaurant when a blue Honda Pilot
drove up. The driver, George Penalba, pointed a revolver at
1 Nazir was decided nearly 18 months after the trial court
in this case denied the prosecutor’s request to dismiss the firearm
and prior strike allegations.
2
Moreno and Vargas. Islas Segura and another man, Brandon
Peete, got out of the car. One of the men hit Vargas in the head
with a gun. The other man indicated he had a gun under his
sweater and pressed it against Moreno’s body. Islas Segura and
Peete took the victims’ phones and wallets, and then drove away
in the Pilot. The police found the Pilot and detained Islas Segura
later that night. In the car, the police discovered a magazine
loaded with 15 bullets for a semiautomatic firearm.
The People charged Islas Segura, Penalba, and Peete
with two counts of second-degree robbery (Pen. Code, § 211)2.
The People also charged Islas Segura with assault on Vargas
with a firearm (§ 245, subd. (a)(2)). The People alleged he used
a firearm during the offenses within the meaning of sections
12022.53, subdivision (b) and 12022.5, subdivision (a). The
information also alleged Islas Segura had suffered a prior
first degree burglary conviction (§ 459), which qualified as
both a five-year prior and a strike for purposes of the Three
Strikes law.
2. Pretrial motions after the newly-elected district
attorney issued his “Special Directive 20-08”
On December 14, 2020, Islas Segura appeared before
the court with his attorney. Counsel for Penalba and Peete
also appeared on behalf of their clients, who were not in court.
Deputy District Attorney Nicholas Liddi appeared on behalf
of the People.
Newly-elected District Attorney George Gascón had issued
his “Special Directive 20-08” one week earlier, on December 7,
2020, his first day in office. (See Association of Deputy District
2 References to statutes are to the Penal Code.
3
Attorneys v. Gascón (2022) 79 Cal.App.5th 503, 515–516, review
granted Aug. 31, 2022, S275478.) Gascón’s special directive
made significant changes to his office’s Legal Policy Manual.
(See Nazir, supra, 79 Cal.App.5th at p. 486.) The directive
stated the District Attorney’s office would not file sentencing
enhancement allegations in new cases, and it instructed deputy
district attorneys to move to dismiss or withdraw enhancement
allegations in pending cases. (Ibid.)
As justification for this new policy, the directive stated
that “ ‘the current statutory ranges for criminal offenses alone,
without enhancements, are sufficient to both hold people
accountable and also to protect public safety’ and that
‘studies show that each additional sentence year causes a
4 to 7 percent increase in recidivism that eventually outweighs
the incapacitation benefit.’ An appendix to Special Directive
20-08 stated that there was no compelling evidence California’s
100-plus sentence enhancements improved public safety, that
such enhancements contributed to prison overcrowding, and
that they ‘exacerbate[d] racial disparities in the justice system.’
The appendix also stated ‘long sentences do little’ to deter crime.”
(Nazir, supra, 79 Cal.App.5th at p. 486.)
Penalba’s counsel told the court, “I’d like to make
a motion to strike all allegations on behalf of Mr. Penalba.”
Peete’s attorney stated, “To the extent that there are any special
allegations or enhancements that relate to Mr. Peete, I request
the deputy district attorney to abide by the directive of District
Attorney Gascón, making a motion to dismiss any special
allegations and enhancements.” The court inquired of Islas
Segura’s counsel. He replied he believed the strike prior alleged
against Islas Segura was “an enhancement under 1170.12(b)
4
that’s contemplated by the new district attorney’s office
directive,” adding, “I’d ask that it be stricken, both as a
strike prior, and as a five-year prior.”3 Islas Segura’s counsel
did not ask the court to strike or dismiss any of the three
firearm enhancements alleged against his client.
Liddi then stated, “[A]t the direction of the District
Attorney, George Gascón, the People join in the defendants’
motions to strike all alleged sentence enhancements . . . and
move to dismiss all allegations, alleged sentence enhancements
named in the information for all counts and all defendants.”
This exchange ensued:
“THE COURT: Okay. So is this request based only
on the special directive, Mr. Liddi?
“MR. LIDDI: That is correct.
“THE COURT: Under 1385?
“MR. LIDDI: Yes.
“THE COURT: All right. Thank you. . . . Well, it’s
well-settled that the court’s
discretion to dismiss under 1385
must be based on an individualized
consideration of the circumstances of
the offense and the defendant’s
background, and that the court’s
3 The Three Strikes law is an alternative sentencing scheme,
not an enhancement. (People v. Burke (2023) 89 Cal.App.5th
237, 242–244.) The next day, December 15, 2020, “the district
attorney issued a clarification” of the special directive that
it applied to all allegations of “prior serious or violent felony
convictions under the three strikes law” as well. (Nazir, supra,
79 Cal.App.5th at pp. 486–487.)
5
exercise of discretion cannot be based
on disagreement with the law or
antipathy with the sentencing
scheme, so for those reasons, the
court would be inclined to deny the
request to dismiss.”
The court continued, “Of course, should any counsel wish
to renew the motion based upon the factors that are traditionally
submitted to the court for dismissal under 1385, I would welcome
—I’d be happy to consider it.” Peete’s counsel noted the
prosecutor had failed to “articulate[ ]” the “language [in the
special directive] that bears on the subject of good cause as to
why the court should grant the motion to dismiss allegations
and enhancements.” The court responded it would “incorporate”
the special directive “into the record,” but noted it did “not
provide any facts or circumstances specific to this case.”
3. The trial, verdict, and sentence
The People tried Islas Segura separately from his
co-defendants in August 2021. The trial ended in a mistrial
after the court excused several jurors for medical reasons.
The People tried the case to a second jury in November
2021. Both victims testified at the second trial, and they
generally agreed on the facts summarized above. However,
they disagreed about Islas Segura’s specific role in the robberies.
According to Moreno, Islas Segura pressed a gun against his body
and robbed him, and Peete struck Vargas in the head with a gun.
According to Vargas, Islas Segura struck him in the head with
a gun, and Peete robbed Moreno. As the Attorney General notes,
because the jury convicted Islas Segura of assault with a firearm
on Vargas, it must have believed Vargas’s testimony that it was
6
Islas Segura, rather than Peete, who hit him in the left temple
with a gun.
The jury convicted Islas Segura as charged and found true
the firearm allegations. In a bench trial, the court found true
the prior conviction allegations.
At no time before, during, or after the first or second trials
did either the prosecutor or Islas Segura’s counsel make any
further motion or request to dismiss his prior strike, or to strike
or dismiss any of the firearm enhancements.
The parties appeared for sentencing on January 14, 2022.
The prosecutor asked the court to sentence Islas Segura to
18 years, consisting of the midterm of three years on count 1
(robbery of Moreno), doubled because of the strike, plus one-third
the midterm on count 2 (robbery of Vargas), doubled, to be
served consecutively to count 1, plus 10 years for the firearm
enhancement (§ 12022.53, subd. (b)). The prosecutor did not
ask the court to strike or dismiss any of the enhancements.
Nor did defense counsel ask the court to strike or dismiss
any enhancements.4 Counsel asked the court to sentence
4 Defense counsel apparently never made a Romero motion
to dismiss Islas Segura’s strike prior. (See People v. Superior
Court (Romero) (1996) 13 Cal.4th 497.) As for the firearm
enhancements, when the prosecutor made his oral motion in
December 2020, section 1385, subdivision (a) provided, “The
judge or magistrate may, either of his or her own motion or upon
the application of the prosecuting attorney, and in furtherance
of justice, order an action to be dismissed.” (Former § 1385,
subd. (a).) As a leading treatise has noted, “Section 1385 on
its face authorizes only the court or the prosecution to bring
a motion to dismiss a pleading.” (Couzens et al., Sentencing
California Crimes (The Rutter Group 2023) § 20:52.) The treatise
7
Islas Segura to 16 years, consisting of the midterm on count 2,
doubled because of the strike, plus 10 years for the firearm
enhancement. Counsel asked the court to run the sentence
on count 1 concurrently with the sentence on count 2.
The court accepted defense counsel’s proposed sentence.
The court also, on its own motion, struck the firearm
enhancement on count 1. Neither the prosecutor nor defense
counsel addressed count 3, assault with a firearm on Vargas.
The court did not impose sentence on that count, stating only,
“The sentence, in connection with count 3, Penal Code
section 245(a)(2), and the gun allegation, under Penal Code
section 12022.5, is stayed pursuant to Penal Code section 654.”
continues, however, to cite cases holding a defendant has a right
to invite the court to exercise its power by an application to strike
a count or allegation of an accusatory pleading, and the court
must consider evidence offered by the defendant in support of
his assertion that the dismissal would be in the furtherance
of justice. (Ibid. [citing cases including Rockwell v. Superior
Court (1976) 18 Cal.3d 420, 441].) By the time of Islas Segura’s
sentencing in January 2022, the Legislature had added
subdivision (c) and its many subparts to section 1385, imposing
on courts the duty to “dismiss an enhancement if it is in the
furtherance of justice,” unless any initiative statute prohibited
such a dismissal. (§ 1385, subd. (c)(1).) Moreover, as of
January 1, 2018, section 12022.53, subdivision (h) gave courts
authority, in the interest of justice under section 1385, to strike
or dismiss a firearm enhancement. (§ 12022.53, subd. (h).)
8
DISCUSSION
1. Under Nazir v. Superior Court, remand is
appropriate in this case
a. We exercise our discretion to consider the merits
We first address the Attorney General’s contention
that Islas Segura forfeited the issue. The Attorney General
acknowledges the prosecutor expressly moved (orally) to dismiss
the strike prior and firearm allegations against Islas Segura.
Nevertheless, he argues Islas Segura is barred from challenging
the court’s denial of that motion because he did not explicitly
join in the prosecutor’s request to dismiss the firearm allegations;
instead, he requested only that the court dismiss the prior
conviction allegations.
The Attorney General seems to misunderstand the nature
of Islas Segura’s appeal. As we understand it, Islas Segura
does not challenge the court’s denial of his informal request
for dismissal of the prior conviction allegations. Instead, he
challenges the court’s denial of the prosecutor’s motion to dismiss
all the allegations against him. Although Islas Segura had the
right to invite the court to exercise its power to strike or dismiss
the allegations (Rockwell v. Superior Court, supra, 18 Cal.3d at
p. 441), he had no authority to join in the prosecutor’s motion5
5 The Attorney General does not contest Islas Segura’s
standing to challenge the denial of the prosecutor’s motion,
so we need not consider that issue. In any event, it appears
Islas Segura does have standing. (See Nazir, supra, 79
Cal.App.5th at p. 489, fn. 3 [“We summarily denied the petition
because we concluded [the defendant], who was seeking writ
review of the trial court’s order denying the People’s [1385]
motion (i.e., not his motion), lacked standing. The Supreme
Court apparently thought otherwise.”].)
9
(see People v. Carmony (2004) 33 Cal.4th 367, 375 [“A defendant
has no right to make a motion, and the trial court has no
obligation to make a ruling, under section 1385.”]).
Alternatively, the Attorney General contends the
prosecutor’s December 2020 motion was not sufficient to preserve
the issue given the court later declared a mistrial. According to
the Attorney General, once the court declared a mistrial, its prior
rulings no longer had effect. Therefore, he asserts, Islas Segura
and the prosecutor had to make new requests for dismissal—
either at the second trial or sentencing—to preserve the issue
for appeal.
The Attorney General provides no authority explicitly
holding a declaration of mistrial vacates a court’s prior rulings
under section 1385. In any event, to foreclose any issue about
ineffective assistance of counsel, we exercise our discretion
to consider the merits of Islas Segura’s claim.
b. The Nazir decision
A felony complaint charged Rehan Nazir with various
crimes, including kidnapping, and included firearm allegations.
On December 11, 2020, three days after Gascón issued his special
directive, the prosecutor made an oral motion to dismiss the
firearm enhancements. The court—the same judge who denied
the prosecutor’s motion in this case (the Honorable Lee W. Tsao)
—denied the motion, stating it was “ ‘based solely on District
Attorney Gascón’s Special Directive.’ ” (Nazir, supra, 79
Cal.App.5th at pp. 486–487.) “The court said the cases ‘are clear
that the exercise of discretion under [section] 1385 must be based
on an individualized consideration of the offense and the offender
10
and not on any antipathy or disagreement with the statutory
scheme.’ ” (Id. at pp. 487–488.)6
A week later the prosecutor filed a written motion under
section 1385 to dismiss the firearm enhancements, “restating
verbatim the arguments recited in” an addendum to the special
directive. “At the hearing, the prosecutor did not present
any argument in support of the motions, other than parroting
the language” of the special directive. Nazir’s counsel argued
the court had erred in denying the People’s previous motion.
(Nazir, supra, 79 Cal.App.5th at p. 488.)
The court again denied the prosecutor’s motion. Again,
the court stated the “ ‘exclusive basis’ ” for the motion was
the Special Directive. To grant the motion, the court said,
it “ ‘would have to adopt [the district attorney’s] rationale,’ ”
which was “ ‘not a permissible basis’ ” on which to grant the
motion. The court considered the information, the preliminary
hearing transcript, the probation report, the nature of the
offense, and Nazir’s background and character, concluding
the motion to dismiss the enhancements was not in the
interest of justice. (Nazir, supra, 79 Cal.App.5th at p. 488.)
6 See generally Couzens et al., Sentencing California
Crimes, supra, § 12:11 [“In determining whether striking
an enhancement is in the furtherance of justice, the court . . .
should make its decision after an individualized consideration”
of factors such as the nature and circumstances of the crime and
the defendant’s level of involvement, the defendant’s background
and prospects, the constitutional rights of the defendant and
the interests of society represented by the People, and other
factors that “would motivate a ‘reasonable judge’ in the exercise
of discretion.”]. See also Cal. Rules of Court, rules 4.410, 4.411.5,
4.421, 4.423, 4.428.
11
Nazir filed a petition for writ of mandate or prohibition.
(Nazir, supra, 79 Cal.App.5th at p. 489.) The Attorney General
filed a brief as amicus curiae on behalf of Nazir and District
Attorney Gascón. (Id. at p. 484.)7 The Attorney General stated
“a policy like S[pecial] D[irective] 20-08 is a proper basis for
seeking dismissal.” The Attorney General noted “it is the
elected district attorney, not the court, that determines how
best to represent society’s interest in prosecuting criminal
offenses,” and “[t]he policy judgments expressed in S[pecial]
D[irective] 20-08 represent the People’s determination regarding
‘the interests of society’ for purposes of section 1385.”
The Attorney General stated, “It is the court [not
the prosecutor] that is required to make an individualized
assessment of the case, weighing that factual assessment along
with other relevant considerations.” “When the prosecution
elects to request dismissal of charges, as here,” the Attorney
General noted, “the interests of the defendant and the People
are aligned.” According to the Attorney General, “the parties’
agreement alone may strongly suggest that dismissal would
be in furtherance of justice.”
The Court of Appeal concluded, “The trial court
misunderstood the scope of its discretion when it refused
to consider Special Directive 20-08 in determining whether
to grant the motion to dismiss the firearm enhancements
alleged against Nazir.” (Nazir, supra, 79 Cal.App.5th at p. 497.)
However, the appellate court rejected Gascón’s contention that
a trial court has no authority to deny a prosecutor’s motion to
7 On our own motion, we take judicial notice of the Attorney
General’s amicus brief in Nazir. (Evid. Code, § 452, subd. (d)(1).)
12
dismiss an enhancement under section 1385. (Nazir, at p. 499.)
The court reiterated that, in determining whether dismissal
of an enhancement furthers the interest of justice, a court
“must consider case-specific factors as well as general sentencing
objectives.” (Id. at p. 485.) The court remanded the matter,
directing the trial court to “consider Special Directive 20-08
in determining whether to dismiss the firearm allegations
against Nazir.” (Id. at p. 501.)
c. The record does not support the Attorney General’s
attempt to distinguish Nazir
Islas Segura contends that, as in Nazir, supra, 79
Cal.App.5th 478, the trial court erroneously believed it was
not permitted to consider Special Directive 20-08 in connection
with the prosecutor’s motion to dismiss. The facts in Nazir are
remarkably similar to this case. Here, as in Nazir, the prosecutor
moved to dismiss allegations against a defendant based solely
on Special Directive 20-08. (Id. at pp. 487–488.) Moreover, the
same trial judge who denied the prosecutor’s motion in Nazir
declined to consider the special directive and denied the
prosecutor’s motion in this case. (Ibid.)
The Attorney General does not contend Nazir was wrongly
decided or we should not follow it. This is not surprising, as
the Attorney General filed an amicus brief in Nazir supporting
the petitioner and District Attorney Gascón. Nevertheless,
the Attorney General asserts that—contrary to Islas Segura’s
characterization of the record—the trial court did consider
Special Directive 20-08, but concluded it was not sufficient to
warrant dismissal under the specific facts of this case. Therefore,
the Attorney General argues, there is no need to remand the case
for reconsideration.
13
The record does not support the Attorney General’s
assertion. In denying the People’s motion, the court noted
it is “well-settled that the court’s discretion to dismiss under
1385 must be based on an individualized consideration of the
circumstances of the offense and the defendant’s background,”
and cannot “be based on disagreement with the law or antipathy
with the sentencing scheme.” As we have said, this was a correct
statement of the law. The court also remarked that Special
Directive 20-08 does not provide any facts or circumstances
specific to this case, and it invited Islas Segura to make a
renewed request based on factors “traditionally submitted to
the court for dismissal under 1385.” These remarks suggest
the court believed it could not grant the prosecutor’s motion
to dismiss based on Special Directive 20-08 alone, which was
a reasonable conclusion under the state of the law at the time.
However, eighteen months later, the Nazir court held a trial
court, in ruling on a motion to dismiss an enhancement, properly
may consider a prosecutor’s position that the deterrent effect
or value to public safety of imposing a sentence enhancement
is questionable. (Nazir, supra, 79 Cal.App.5th at p. 499.)
Our interpretation of the record finds further support
in the fact that the same judge made very similar remarks in
Nazir, which he decided within days of the ruling in this case.
The motion to dismiss in Nazir and the prosecutor’s motion
in this case are identical in all relevant respects, and there
is no apparent reason why the judge would have treated them
differently. Although the judge made additional clarifying
remarks in Nazir, given all the circumstances, we are sufficiently
convinced he employed the same reasoning in both cases.
Accordingly, the case must be remanded for the court to
14
reconsider the prosecutor’s motion to dismiss, giving due
consideration to Special Directive 20-08.
2. There was no prosecutorial misconduct
Islas Segura contends the prosecutor committed
misconduct during closing argument by referring to a Christmas
snow globe.
a. Background
During closing argument, the prosecutor drew an analogy
between the evidence in the record and a Christmas snow globe.8
He explained that “what we say, the attorneys, it’s not evidence.
What you heard from that witness stand, the exhibits that you
saw, that’s the encapsulated snow globe of evidence in this case.
And like a snow globe, it usually gives you a little bit because you
can’t fit everything into the snow globe, right?” The prosecutor
continued: “So if you have Santa Claus and one reindeer, you
don’t need all of the reindeer in that snow globe to realize that
it’s a Christmas snow globe, right, even though it would, I guess,
be nice. You realize there are Dancer, Prancer, Donner, and
Vixen—they’re out there, but they’re not in the snow globe.
You don’t need them. There is always going to be extra evidence
outside that globe, but you focus on what’s in there and if that’s
enough to convict, that’s what you go with. And if it’s not,
you acquit.”
b. Standard of review
“When attacking the prosecutor’s remarks to the jury,
the defendant must show that, ‘[i]n the context of the whole
argument and the instructions’ [citation], there was ‘a reasonable
likelihood the jury understood or applied the complained-of
8 The record does not disclose whether the prosecutor used
an actual snow globe during his closing argument.
15
comments in an improper or erroneous manner. [Citations.]
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. [Citation.]’ ”
(People v. Centeno (2014) 60 Cal.4th 659, 667 (Centeno).)
c. Islas Segura forfeited the issue
We agree with the Attorney General that Islas Segura
forfeited the issue by failing to raise it below. Absent a showing
that an objection or request for admonition would have been
futile or that the harm could not have been cured, an appellant
may not complain of prosecutorial misconduct unless he timely
objected to the alleged misconduct at trial and asked the court
to admonish the jury to disregard the impropriety. (People v. Hill
(1998) 17 Cal.4th 800, 820; People v. Morales (2001) 25 Cal.4th
34, 43–44.) Islas Segura did neither in this case. Nor does
the record indicate an objection would have been futile or
that any harm could not have been cured with an admonition.
Accordingly, Islas Segura has forfeited the issue. Nevertheless,
we will consider the merits of his arguments in order to forestall
his derivative ineffective assistance of counsel claim.
d. Islas Segura has not shown the prosecutor engaged
in misconduct
Relying on People v. Katzenberger (2009) 178 Cal.App.4th
1260 and Centeno, supra, 60 Cal.4th 659, Islas Segura argues
the prosecutor’s reference to a snow globe during closing
argument constituted misconduct. In Katzenberger, the
prosecutor attempted to demonstrate the burden of proof
during closing argument by showing the jury a slide show of
an eight-piece puzzle of the Statue of Liberty. The prosecutor
added pieces to the puzzle one-by-one, until six of the eight pieces
16
were visible. (Katzenberger, at pp. 1264–1265.) At that point,
the prosecutor asserted, “ ‘[w]e know [what] this picture is [the
Statue of Liberty] beyond a reasonable doubt without looking
at all the pieces of that picture.’ ” (Id. at p. 1265.) She then
noted the jury’s “ ‘standard is to judge this case beyond a
reasonable doubt.’ ” (Ibid.)
The Court of Appeal held the prosecutor’s demonstration
constituted misconduct. (People v. Katzenberger, supra, 178
Cal.App.4th at p. 1268.) The court explained the use of a puzzle
that was almost immediately recognizable “leaves the distinct
impression that the reasonable doubt standard may be met by
a few pieces of evidence. It invites the jury to guess or jump to
a conclusion, a process completely at odds with the jury’s serious
task of assessing whether the prosecution has submitted proof
beyond a reasonable doubt.” (Id. at pp. 1266–1267.) The court
also noted the prosecutor’s argument improperly quantified the
concept of reasonable doubt, suggesting it requires 75 percent
certainty. (Id. at pp. 1267–1268.)
In Centeno, supra, 60 Cal.4th 659, the prosecutor
attempted to explain the burden of proof by showing the jurors
a diagram containing a geographical outline of California. (Id.
at pp. 664, 665 & fn. 4.) The prosecutor told the jury it had to
decide what state was depicted in the diagram. She then laid out
“hypothetical ‘testimony’ ” about the diagram, which was full
of inconsistencies, omissions, and inaccuracies. (Id. at p. 664.)
The prosecutor argued that, despite the flawed testimony, there
was no reasonable doubt the state in the diagram was California.
(Ibid.)
Analogizing to Katzenberger, the California Supreme Court
held the prosecutor’s argument constituted misconduct. The
17
high court explained the “use of an iconic image like the shape
of California or the Statue of Liberty, unrelated to the facts of
the case, is a flawed way to demonstrate the process of proving
guilt beyond a reasonable doubt. These types of images
necessarily draw on the jurors’ own knowledge rather than
evidence presented at trial. They are immediately recognizable
and irrefutable. Additionally, such demonstrations trivialize
the deliberative process, essentially turning it into a game
that encourages the jurors to guess or jump to a conclusion.”
(Centeno, supra, 60 Cal.4th at p. 669.)
Islas Segura argues the prosecutor’s snow globe analogy
in this case is comparable to the inappropriate demonstrations
in Katzenberger and Centeno. Specifically, he contends
the prosecutor misstated the burden of proof and the jury’s
obligations by asserting “ ‘if you have Santa Claus and one
reindeer, you don’t need all of the reindeer in that snow globe
to realize that it’s a Christmas snow globe.’ ” According to
Islas Segura, this remark improperly suggested a quantitative
measure of reasonable doubt and conveyed to the jury it could
find him guilty based only on a “ ‘little bit’ ” of evidence.
We agree with Islas Segura that some of the prosecutor’s
remarks resemble those in Katzenberger and Centeno, especially
when viewed in isolation. As in those cases, the prosecutor used
a relatively iconic image that was unrelated to the case, urged
the jurors to rely on their outside knowledge to identify it, and
suggested they could reach a conclusion about the image based
on limited information. Nevertheless, the prosecutor’s snow
globe analogy is sufficiently distinct from the arguments in
Katzenberger and Centeno that it does not rise to the level
of misconduct.
18
Contrary to Islas Segura’s contentions, it is not self-evident
the jurors would have understood the prosecutor’s analogy to
concern the burden of proof. In Katzenberger and Centeno,
the prosecutors were explicit that the purpose of their analogies
was to explain the concept of proof beyond a reasonable doubt,
something the Supreme Court has described as a “ ‘perilous
exercise.’ ” (People v. Freeman (1994) 8 Cal.4th 450, 503–504.)
Here, in contrast, the prosecutor did not explicitly mention the
burden of proof, use language from the relevant jury instruction,
or ask the jurors to make factual findings about the snow globe.
Instead, he simply noted the jurors could “realize” the snow globe
was Christmas themed, a term not commonly associated with
criminal trials. Although it is possible to construe his remark
as concerning the burden of proof, given this context, it is
not reasonably likely the jurors understood it in that way.
Instead, it is far more likely the jurors understood the
analogy to convey a much simpler concept: that they should focus
on the evidence presented at trial, without speculating about
what other information might exist. Unlike the burden of proof,
the prosecutor explicitly mentioned this idea while discussing
the snow globe analogy. Indeed, he concluded his discussion
of the analogy by stating, “[t]here is always going to be extra
evidence outside that globe, but you focus on what’s in there
and if that’s enough to convict, that’s what you go with. And
if it’s not, you acquit.” Describing this concept is far less perilous
than describing the burden of proof.
We also reject Islas Segura’s contention that the
prosecutor’s analogy likely misled the jurors about the nature
of their factfinding obligations. In Katzenberger and Centeno,
the prosecutors presented their demonstrations as being
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generally analogous to a criminal trial. In doing so, they wrongly
implied the process to determine a defendant’s guilt is akin to
a simple game. Here, in contrast, the prosecutor focused on one
specific characteristic of the snow globe—its isolated and limited
depiction of an event—which he then related to the trial.
By limiting the scope of his analogy in this way, it is unlikely
the jury understood the prosecutor to be suggesting anything
improper about the nature of the deliberative process.
In closing, however, we remind counsel that such creative
demonstrations as the use of a snow globe in a criminal trial
can be fraught with peril. It is far better to stick to the facts
of the case and the jury instructions.
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DISPOSITION
We vacate Guillermo Islas Segura’s sentence and otherwise
affirm the judgment. We remand the case for the trial court to
resentence Isla Segura after reconsidering the People’s motion
to dismiss under section 1385 in accordance with this opinion.
We remind the court that, when resentencing Islas Segura, it
must impose a sentence on all counts and then stay execution
of sentence as necessary under section 654. (See People v. Alford
(2010) 180 Cal.App.4th 1463, 1469.)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
ADAMS, J.
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