Filed 12/18/19 P. v. Hernandez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

CARLOS HERNANDEZ,

Defendant and Appellant.

D074520

(Super. Ct. No. SCD275657)

APPEAL from a judgment of the Superior Court of San Diego County, Honorable David B. Oberholtzer, Judge. Affirmed.

Britton Donaldson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Carlos Hernandez of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and found true an allegation that he personally used a deadly weapon, specifically, a metal bat (§ 1192.7, subd. (c)(23)). The court sentenced Hernandez to three years in state prison.

Hernandez contends the court erroneously instructed the jury that a baseball bat is an inherently deadly weapon. He further contends the prosecutor committed misconduct during closing arguments by misstating the burden of proof and, alternatively, his trial counsel provided ineffective assistance by failing to object to the prosecutor’s closing arguments. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. Prosecution’s Case

The victim, E.S., and his wife were driving home early one morning when they noticed Hernandez trying to open car doors. The couple continued driving around the block to check on E.S.’s Subaru, which was inoperable and left unlocked. They found the Subaru with two of its doors open and Hernandez inside. E.S. parked and got out.

E.S. told Hernandez he owned the Subaru and threatened to call the police. Hernandez approached E.S. and said he did not care. E.S. was scared. Suddenly, Hernandez pulled out a bat and swung it at E.S, but E.S. avoided the blow by getting back into his car. Hernandez struck the car’s back window instead. E.S. said Hernandez swung the bat with “so strong a blow that [Hernandez] broke the back window.” E.S. and his wife sped off. E.S. called the police and Hernandez was detained shortly afterwards. E.S. identified Hernandez as the assailant that morning.

At trial, E.S. testified if he had not moved, Hernandez would have struck his head. E.S. demonstrated for the jury how Hernandez swung the bat by lifting his hand “as if holding a baseball bat above him and [coming] down across his body.” On cross-examination, E.S. demonstrated the motion again and defense counsel described it as a “tomahawk motion striking downward.” E.S.’s wife testified generally in accord with E.S. However, she demonstrated Hernandez had both hands on the bat as if “winding up to hit somebody” before he brought the bat down towards E.S. She thought Hernandez was going to hit E.S.

B. Defense Case

Hernandez testified he found the metal bat that morning and was walking home when he stopped to rest next to the parked Subaru. A car approached, so Hernandez pulled himself up with the Subaru’s door and it swung open. He denied being inside the Subaru. Hernandez said E.S. got out of the car, told him the Subaru belonged to him, and he should not be around it. E.S. threatened to call the police and Hernandez told him to go ahead.

According to Hernandez, E.S. screamed at and insulted Hernandez, and also told Hernandez he had a gun, threatening to shoot him with it. Hernandez then saw E.S. turn around as if reaching for something, so he ran towards E.S.’s car and broke the back window with the bat. Hernandez admitted he never saw a gun. He denied trying to hit E.S. with the bat, claiming he used the bat to scare E.S. On cross-examination, the prosecutor asked Hernandez, “And you would admit that that bat can do some damage if you were to make contact with [E.S.]?” Hernandez answered, “Yes.”

C. Closing Arguments

The prosecutor in closing argument focused on the way Hernandez used the bat: “[B]asically what the [jury instructions] are asking you to look at is an act. The act of [Hernandez] swinging that bat at [E.S.]; that it would probably and directly result in the application of force. When you swing a bat at someone’s head, you have committed an assault.” The prosecutor added: “[E]nough force was used by [Hernandez] swinging that bat that it broke the window. We are not talking about scaring someone away with a bat. [Hernandez] took a full swing as both witnesses testified to you, and the car pulls forward, he misses and hits the back of the car.” He continued: “The only reason you would get to [the charge of] assault is if you believe that a metal bat is not a deadly weapon and [the jury instruction] just asks you to look at the manner in which a weapon is used. A baseball bat may not be inherently deadly. You know, little kids use it in T-ball games and things like that. But when you swing it at someone’s head, you have now made an item inherently deadly.”

D. Jury Instructions

For the charge of assault with a deadly weapon, the court instructed the jury with CALCRIM No. 875: “A deadly weapon other than a firearm is any object, instrument, or weapon that is inherently deadly or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.” As to the deadly weapon allegation, the court similarly instructed the jury with CALCRIM No. 3145: “A deadly or dangerous weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury. [¶] In deciding whether an object is a deadly weapon, consider all the surrounding circumstances, including when and where the object was possessed, and any other evidence that indicates whether the object would be used for a dangerous, rather than a harmless, purpose.”

DISCUSSION

I. The Erroneous Jury Instruction Was Not Prejudicial

Hernandez contends the trial court wrongly instructed the jury because a baseball bat is not an inherently deadly weapon as a matter of law. He argues the error was prejudicial because there was conflicting evidence regarding how Hernandez used the bat, and because the prosecutor told the jury the bat was an inherently deadly weapon. The People concede the instruction was erroneous but claim the error was not prejudicial because the prosecutor’s argument was based on a legally correct theory; further, sufficient evidence established Hernandez used the bat in a deadly or dangerous manner.

A. Applicable Law

People v. Aledamat (2019) 8 Cal.5th 1 (Aledamat) controls this issue. In that case, the trial court instructed the jury with CALCRIM Nos. 875 and 3145 “that a weapon could be either inherently deadly or deadly in the way defendant used it.” (Aledamat, supra, 8 Cal.5th at p. 6.) In Aledamat, the defendant threatened to kill his victim with a box cutter. (Aledamat, supra, 8 Cal.5th at p. 4.) During closing argument, the prosecutor “argued that the box cutter was an ‘inherently deadly weapon,’ noting that ‘you wouldn’t want your children playing with’ it.” (Id. at p. 5.) Defense counsel argued “the defendant did not use the box cutter in a way that would probably result in the application of force

. . . . [And] never argued that, if he did assault the victim with the box cutter, the box cutter was not a deadly weapon.” (Id. at p. 14.) The jury convicted the defendant of assault with a deadly weapon and found true the weapon allegation. (Id. at p. 5.)

The Court of Appeal reversed Aledamat’s assault with a deadly weapon conviction, finding the jury instruction “erroneously permitted the jury to find the box cutter to be an inherently deadly weapon” and further finding there was ” ‘no basis in the record for concluding that the jury relied on the alternative definition of “deadly weapon” (that is, the definition looking to how a noninherently dangerous weapon is used).’ ” (Aledamat, supra, 8 Cal.5th at p. 5.)

The California Supreme Court reversed that decision, holding the Chapman v. California (1967) 386 U.S. 18 harmless error standard is the appropriate test for evaluating prejudice. (Aledamat, supra, 8 Cal.5th at p. 13.) Under this standard, “[t]he reviewing court must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, it determines the error was harmless beyond a reasonable doubt.” (Ibid.)

The Aledamat court concluded the instructional error was harmless under that standard because under one nonexclusive test, “the jury necessarily found the following: (1) defendant did an act with a deadly weapon (either inherently or as used) that by its nature would directly and probably result in the application of force; (2) defendant was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and (3) defendant had the present ability to apply force with a deadly weapon to a person.” (Aledamat, supra, 8 Cal.5th at p. 15.) Further, in light of the findings, the jury necessarily found the instrument deadly as used. (Ibid.)

An “inherently deadly or dangerous” weapon is a term of art describing objects that are deadly or dangerous “in the ordinary use for which they are designed,” that is, weapons that have no practical nondeadly purpose. (People v. Perez (2018) 4 Cal.5th 1055, 1065.) “Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law.” (People v. Aguilar (1997) 16 Cal.4th 1023, 1029.) “Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object that is not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue.” (Ibid.)

B. Analysis

We agree that the court’s instructions with CALCRIM Nos. 875 and 3145 erroneously presented two theories by which the jury “could find the [baseball bat] a deadly weapon: (1) inherently, or (2) as used.” (Aledamat, supra, 8 Cal.5th at p. 7.) Since a baseball bat is commonly used for a nonviolent purpose, it is not deadly per se. Therefore, we must determine whether this error was prejudicial following Aledamat and review the entire cause including the evidence and all relevant circumstances. (Id. at p. 13.)

The evidence shows Hernandez used the metal bat in a deadly or dangerous manner when he violently broke the window. E.S. and his wife both believed Hernandez tried to hit E.S. with the bat. E.S. testified the only reason he was not hit was because he moved out of the way. Hernandez admitted using the bat to scare E.S. He also admitted swinging with enough force to have seriously injured E.S. It is unlikely the jury would have found the metal bat inherently deadly without considering how Hernandez used it.

Thus, as in Aledamat, we conclude that under the instructions given to the jury, it necessarily found: (1) Hernandez did an act—attempted to hit E.S.—with a deadly weapon (either inherently or as used) that by its nature would directly and probably result in the application of force; (2) Hernandez was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone, as Hernandez testified he knew if he struck E.S. with the bat, E.S. would be harmed; and (3) Hernandez had the present ability to apply force with a deadly weapon, as he in fact did so. In making these findings, the jury also necessarily found the metal bat was deadly as used.

Moreover, we reject Hernandez’s contention that the prosecutor’s closing argument contributed to prejudicial error. The prosecutor repeatedly asked the jury to consider how Hernandez swung the metal bat. Even the statement Hernandez claims was prejudicial was made in the context of how Hernandez used the bat: “when you swing it at someone’s head, you have now made an item inherently deadly.” Aside from this statement, the prosecutor’s arguments in their totality asked the jury to infer Hernandez swung the bat with enough force to cause death or great bodily injury. As such, we conclude the prosecutor misspoke by suggesting a bat was inherently deadly. Moreover, it was not reasonably likely the jury interpreted the prosecutor’s argument to mean the bat was inherently deadly. (See People v. Houston (2012) 54 Cal.4th 1186, 1229.) Therefore, we conclude the instructional error was harmless beyond a reasonable doubt.

II. Prosecutorial Misconduct and Ineffective Assistance of Counsel Claims

Hernandez relies on People v. Centeno (2014) 60 Cal.4th 659 (Centeno) to contend the prosecutor committed misconduct in closing argument by arguing that the burden of proof was satisfied “so long as it was reasonable to believe [Hernandez] was guilty.” He asserts the prosecutor thus lowered the People’s burden of proof, depriving him of his constitutional right to due process.

A. Background

The court instructed the jury regarding reasonable doubt with CALCRIM No. 220: “A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the people must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. . . . [¶] In deciding whether the people have proved their case beyond a reasonable doubt . . . you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal, and you must find him not guilty.”

The prosecutor in closing argument asked the jury to evaluate the evidence and the witnesses’ credibility: “[Hernandez] took the stand in this case and told you his version of the story. . . . But this is what you weigh, as jurors. What is reasonable. What is a reasonable interpretation of what happened.”

Regarding the self-defense instruction, the prosecutor told the jury, “[Y]ou have to analyze what [Hernandez] told you in this case. That he believed that he was in such imminent danger from [E.S.] that he happened to need to use the bat that’s in his hand against [E.S.]. And is that a reasonable belief. Given the biased nature of [Hernandez’s] testimony, the fact that you can discount it because it doesn’t add up to anything else that was told to you, is it a reasonable belief of imminent danger?” The prosecutor continued, “What’s unreasonable is to believe that [Hernandez], who believed that he had to use deadly force against [E.S.], wouldn’t call the police, wouldn’t scream for help.”

Defense counsel argued: “All you are being asked to decide is guilt versus not guilt. . . . Not guilt is saying you know[ ] what, government, you didn’t do enough. I am not convinced beyond a reasonable doubt that [Hernandez] did what you said he did. I am not going to be able to in three months, at a dinner party, talk with my friends and say yeah, I was in this trial and I have no doubts that guy did it. . . . That’s that abiding conviction of proof beyond a reasonable doubt. That leaves you with such an abiding conviction that you know the charges to be true.”

The prosecutor argued in rebuttal: “All that matters is what is a reasonable account of what happened. And that’s what you are instructed as jurors to look at. [¶]

. . . [¶] What is unreasonable to believe is that [Hernandez] just stood up and the door opened. [¶] You don’t get to make unreasonable testimony and then claim that reasonable doubt has been met.” The prosecutor also addressed the burden of proof: “[T]he jury instruction will tell you, and [Hernandez’s] counsel correctly pointed out, that [beyond a reasonable doubt is] something that leaves you with that abiding conviction. [W]e always use that example of four months down the way . . . you recall that case, and you say yeah, he was guilty. . . . And that overcomes any kind of reasonable doubt. Because remember, I [sic] not beyond all possible doubt or imaginely [sic] doubt, because everything in life isn’t—is open to some kind of possible or imaginary [doubt]. It’s what is reasonable. It’s based on the facts.”

Defense counsel did not object to the prosecutor’s arguments on grounds of prosecutorial misconduct or request the court admonish the jury to disregard them.

B. Applicable Law

A prosecutor’s misconduct violates the federal Constitution and requires reversal when it infects the trial with such unfairness as to deny due process. (People v. Tully (2012) 54 Cal.4th 952, 1009.) “In other words, the misconduct must be ‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’ ” (Ibid.) “Advocates are given significant leeway in discussing the legal and factual merits of a case during argument. [Citation.] However, ‘it is improper for the prosecutor to misstate the law . . . and particularly to attempt to absolve the prosecution from its . . . obligation to overcome reasonable doubt on all elements [citation].’ ” (Centeno, supra, 60 Cal.4th 659, 666.)

Under state law, even if a prosecutor’s misconduct does not render a criminal trial fundamentally unfair, it is error if the conduct involves the use of deceptive or reprehensible methods in attempting to persuade the trier of fact. (People v. Tully, supra, 54 Cal.4th at pp. 1009-1010.) Accordingly, we review such claims of prosecutorial misconduct for prejudice. (See People v. Mendoza (2007) 42 Cal.4th 686, 703.) “When attacking the prosecutor’s remarks to the jury, the defendant must show that, ‘[i]n the context of the whole argument and instructions’ [citation], there was ‘a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.’ ” (Centeno, supra, 60 Cal.4th at p. 667.)

C. Analysis

Because Hernandez’s trial counsel did not challenge the prosecutor’s closing argument, the prosecutorial misconduct claim is forfeited. (Centeno, supra, 60 Cal.4th at p. 674 [generally a prosecutorial misconduct claim is preserved for appeal only if the defendant timely objects and requests an admonition to cure any harm].) Nevertheless, we address this claim on the merits because Hernandez raises an ineffective assistance of counsel claim.

Hernandez contends the prosecutor’s arguments here are analogous to the prosecutor’s improper arguments in Centeno. However, Centeno is distinguishable. (Centeno, supra, 60 Cal.4th pp. 665-666.) There, the defendant was convicted of two counts of committing lewd acts on a child under the age of 14, and one misdemeanor count of annoying or molesting a child under the age of 18. (Id. at p. 664, fns. omitted.) In what the Supreme Court noted was a “very close case,” the prosecutor “depended almost entirely on [the victim’s] credibility, which was called into question in several respects.” (Id. at p. 677.) The defendant testified and denied “any inappropriate touching had occurred.” (Ibid.) During closing argument, the prosecutor used a hypothetical to illustrate the People’s burden (id. at p. 670) and implied the burden was met if “it was ‘reasonable’ [for the jury] to believe that defendant was guilty.” (Id. at p. 676.) The Court found the hypothetical “misleading” because it did not “accurately reflect” the conflicting evidence actually presented to the jury. (Id. at p. 670.) Also, the prosecutor’s statements “clearly diluted the People’s burden.” (Id. at p. 673.)

In contrast, the prosecutor’s closing remarks here were not improper. The jury heard undisputed testimony that Hernandez violently broke E.S.’s car window with a bat. The prosecutor’s closing arguments centered around evaluating each witness’ credibility. A prosecutor is permitted to argue “that the jury may reject impossible or unreasonable interpretations of the evidence and to so characterize a defense theory.” (Centeno, supra, at p. 672.) Here, the prosecutor referred to “reasonable” and “reasonableness” to guide the jury on how to evaluate evidence—not to substitute for the burden of proof. (See ibid., quoting People v. Romero (2008) 44 Cal.4th 386, 416 [approving the prosecutor’s argument to the jury that it may ” ‘decide what is reasonable to believe versus unreasonable to believe’ and to ‘accept the reasonable and reject the unreasonable’ “].) Even if defense counsel had objected to the prosecutor’s argument, the court likely would have simply reminded the jury to read the instruction that the arguments of counsel are not evidence (CALCRIM No. 222). We presume the jury followed the court’s actual instructions on this point. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)

In light of the entire record, Hernandez has not shown the prosecutor’s closing arguments were prejudicial. The court instructed the jury on reasonable doubt (CALCRIM No. 220). Defense counsel correctly explained “abiding conviction” to the jury. And the prosecutor restated defense counsel’s example of “abiding conviction” during rebuttal.

Since the prosecutor did not commit misconduct, Hernandez’s counsel was not ineffective for failing to object to the prosecutor’s arguments. We therefore need not address this contention further.

DISPOSITION

The judgment is affirmed.

O’ROURKE, Acting P. J.

WE CONCUR:

AARON, J.

IRION, J.