Filed 12/23/19 P. v. Glaude CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER JULIUS GLAUDE,

Defendant and Appellant.

F076021

(Super. Ct. No. F12909264)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge.

Peter Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Kevin M. Cornwall, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Defendant Christopher Julius Glaude was charged with multiple counts related to three different incidents involving stolen vehicles and the burglary of an apartment. On appeal, defendant challenges his convictions, arguing (1) the prosecution failed to establish an essential element of his felony conviction for evading a police officer (count 12)—that the pursuing officer was wearing a distinctive uniform—so this conviction must be reversed; (2) the court reversibly erred in failing to instruct the jury the People had to prove the value of the vehicles exceeded $950 to establish a felony violation of Vehicle Code section 10851, subdivision (a), so these convictions must be reversed; (3) the prosecutor improperly commented in closing argument upon defendant’s failure to testify in violation of Griffin v. California (1965) 380 U.S. 609, 615 (Griffin) by arguing defendant found a stolen car but there was no evidence he tried to return it to police; (4) the trial court abused its discretion in excluding evidence of alleged third party culpability; and (5) the prosecutor engaged in prejudicial misconduct through his use of an everyday example to illustrate the reasonable doubt standard.

We reverse defendant’s convictions as to counts 1, 10, and 12 and remand for further proceedings consistent with this opinion. In all other respects, we affirm the judgment.

FACTUAL BACKGROUND

Defendant was charged with three felony counts of unlawfully driving or taking a vehicle on different occasions in violation of Vehicle Code section 10851, subdivision (a) (counts 1, 5 & 10), three felony counts of receiving stolen property, a motor vehicle, in violation of Penal Code section 496d, subdivision (a) (counts 2, 6 & 11), felony residential burglary in violation of sections 459 and 460, subdivision (a) (count 3), misdemeanor receipt of stolen property in violation of section 496, subdivision (a) (count 4), misdemeanor resisting a peace officer in violation of section 148, subdivision (a)(1) (count 7), carjacking in violation of section 215, subdivision (a) (count 8), felony robbery in violation of section 211 (count 9), and felony evading a peace officer in violation of Vehicle Code section 2800.2, subdivision (a) (count 12). He was also charged with special allegations that he had two prior strikes (§ 667, subds. (b)–(i)), two prior serious felony convictions (§ 667, subd. (a)(1)), and four prison priors (§ 667.5, subd. (b)). A jury convicted him of counts 1, 2, 5, 6, 7, 8, 9, 10, 11, and 12 and found him not guilty on counts 3 and 4. The trial court found true all of the special allegations after defendant waived a jury trial on them.

October 23, 2012, theft or driving and receipt of Augustin Serna and Jose Payan’s car (counts 1 & 2)

On October 23, 2012, Jose Payan was selling his brother-in-law Augustin Serna’s car, a 1991 or 1992 Chevrolet Caprice. Only Payan had permission to have the car. He parked it in a parking lot with a “for sale” sign and also put it on Craigslist. According to Payan, defendant called him and expressed interest in the car and they set up a meeting. At trial, Payan identified defendant as the man he met with at the car. According to Payan, defendant looked the same and “there [was] just no way it [was] not him. … [H]e is the one who stole my car.” Defendant was with another man and woman at the meeting.

Payan recalled defendant got in the Caprice and made the back tires spin on the pavement such that smoke was coming out. Defendant then took the car for a test drive and never brought it back. The other man and woman left. According to Payan, he was “sure” defendant was the person who called him to set up the meeting. He explained when they were together, defendant “had the phone with him and he would be the one that would answer it.” After defendant left with the car, Payan called the phone number used to set up the meeting to reach him and find out when defendant was going to return. According to Payan, defendant “was answering that phone, so … it had to have been him. It couldn’t have been anybody else.” Defendant said “I’m on my way” repeatedly, and then, later, he stopped answering. Defendant did not have permission to drive and keep possession of the car.

Officer Daniel Havens worked as a plainclothes officer with the Help Eliminate Auto Theft (HEAT) team of the California Highway Patrol (CHP) and focused on the investigation of vehicle thefts in 2012. At the time, Officer Havens drove an unmarked Chevrolet Silverado and he would drive around looking for stolen cars on his list. At the end of October 2012, Officer Havens participated in the investigation related to the stolen 1992 Chevrolet Caprice. On October 30, 2012, Officer Havens located the Caprice being driven out of a motel parking lot. Officer Havens “thought it was [defendant driving] but … wasn’t a hundred percent certain at the time.” Another CHP investigator found the car in the parking lot of a Red Roof Inn after Officer Havens lost sight of it. Two investigators searched the car and found a backpack in the backseat that had been taken during a residential burglary.

Officer Havens recalled “contacting the occupants” of the car, but defendant ran away from the scene. Officer Havens ordered defendant to stop and defendant did not comply. Eventually, defendant was apprehended and taken into custody. According to Officer Havens, he had been wearing either a shirt issued by the HEAT team that has a pull-down pocket displaying a badge and “CHP” displayed on the back, or a tactical vest issued by CHP that has shoulder straps wrapping around the waist and “CHP” displayed across the back.

On January 10, 2013, Officer Havens interviewed Savana Meeker. Meeker reported that on October 23, 2012, defendant and Goldie Walker saw the Caprice, the owner arrived, they went for a test drive, and, after the test drive, Meeker and Walker walked away. Defendant “remained in the vehicle, was smoking the tires[, and t]old the owner of the car that he was going to move it.” Defendant eventually picked up Meeker and Walker in the Caprice about a block away. Meeker reported knowing that she was getting in a stolen car.

October 23, 2012 residential burglary (count 3, intent to commit larceny) and receipt of stolen property of Seanna McDonald (count 4)

In October 2012, college student Seanna McDonald was dating Darren Jones when his apartment was burglarized. McDonald and Jones had gone to Jones’s apartment after class and McDonald left her green backpack there. They rode their bicycles to get something to eat and, when they returned to the apartment, the door had been kicked in and things were missing, including McDonald’s backpack and some electronics. McDonald recalled seeing an African-American male and a white female sitting on the steps near adjacent apartments. Police eventually recovered McDonald’s backpack from Payan’s stolen Caprice and she identified it as hers.

During Officer Havens’s January 10, 2013, interview with Meeker, she described her and defendant’s involvement in the burglary of Jones’s apartment. She recalled three people leaving the apartment on bicycles before she, Walker, and defendant entered. Walker kicked in the apartment door and instructed Meeker to carry items out. Defendant and Walker also took items out of the apartment and Meeker was to whistle “if something was going on.” Walker instructed Meeker to carry out the green backpack later recovered in the Caprice. Defendant, Walker, and Meeker took the big items they stole to a house and the smaller items, like games, to Game Stop.

Meeker was on parole at the time of the trial for the October 23, 2012, residential burglary and November 12, 2012, robbery with which defendant was charged. She testified for the prosecution. Meeker denied recalling either incident and claimed she was “very high on drugs back then” so “[e]verything’s a blur.” At that time, in late 2012, Meeker was in a relationship with Goldie Walker.

October 26, 2012, theft or driving and receipt of Danielle Kent’s car, and resisting arrest (counts 5, 6, & 7)

On October 25, 2012, Danielle Kent was staying at the Red Roof Inn in Fresno. She was moving boxes up to her hotel room and left her keys in the car, a 2008 silver Honda Accord, when one of her dogs got loose. Kent caught the dog and put him in her room. When she came back downstairs, her car was gone. Kent called and reported the car stolen and an officer returned her call. Kent was unfamiliar with defendant and denied giving him or anyone else permission to drive her car.

Around 12:15 p.m. on October 26, 2012, CHP patrol sergeant Corben Whitney was part of the HEAT team conducting auto theft investigations while in plainclothes. He saw a 2008 Honda Accord occupied by at least three Black male adults, one Hispanic female adult, and two very small children. He noticed the car because the two children were not secured in a safety device of any kind in the back seat and were instead standing up. Whitney then realized the car was on the list of stolen cars based on its license plate number. The vehicle was registered to Danielle Kent. Sergeant Whitney followed the car and eventually found it parked with the original driver walking away from it and defendant now in the driver’s seat. Defendant drove the car into a motel parking lot and Whitney called for backup.

Officer Havens responded to Sergeant Whitney’s call for backup and reestablished surveillance of the Accord while Whitney searched for the original driver. The occupants had left the car. When they returned, Havens called for backup to “take down the vehicle and the occupants,” meaning the police would surround the vehicle and park very close to it so it could not build any momentum to get away or to harm anyone. As the police attempted the takedown, defendant ran away on foot.

Police eventually apprehended defendant and Sergeant Whitney interviewed him a few minutes later. Defendant denied stealing the car and stated “another person who was in the car that he knew as Money stole the car.” Defendant admitted he knew the car was stolen and had driven it. He also admitted he ran from the police and knew it was law enforcement pursuing him. Defendant was taken into custody but was released within days.

November 12, 2012, second degree robbery, theft or driving, receipt, and carjacking of Alejandro Sanchez’s car, and felony evasion of an officer (counts 8, 9, 10, 11 & 12)

On November 12, 2012, Alejandro Sanchez received phone calls inquiring about a 2005 blue Honda Civic he had posted for sale on Craigslist. Sanchez set up a meeting at a donut shop. Four people—two males and two females—arrived in a Toyota pickup truck and asked to test drive the car. Sanchez did not identify defendant as one of the people that met him at the donut shop. The two females got in the Civic and Sanchez rode in the back seat as they took it for a “test drive.” They drove to an apartment complex where the women said they were going to have a mechanic check the car; the other two men followed them in the truck.

Sanchez identified defendant in court as the person whom he met and who acted like a mechanic. Defendant opened the hood of the car and checked it. He then suggested another test drive, and Sanchez accompanied defendant and one of the females. The female drove the car, defendant was in the passenger seat, and Sanchez sat in the back seat. They eventually stopped the car and defendant told Sanchez to get out because he wanted Sanchez to drive.

Sanchez and defendant both exited the car and as Sanchez walked towards the driver’s side, defendant pulled out a gun and pointed it at Sanchez’s face. Defendant told Sanchez, “‘Give me all your stuff, your wallet, your phone.’” Sanchez was scared because he did not know if defendant was going to shoot him. He put everything he had including his cellular phone and wallet, which had around $300 in it, on the back of the car. Sanchez then took off running, and defendant got in the car and left. Sanchez called the police from someone else’s phone and the police picked him up and took him to the station. Sanchez met with Sergeant Michael Peterka of the Fresno police who took Sanchez to his car, which had crashed into a house. The car did not have a bumper and suffered “[a] lot of damage” such that Sanchez called it a “[t]otal loss.” Sanchez estimated the Civic was worth about $5,000 at the time.

Sergeant Peterka investigated the carjacking and robbery. He testified he spoke to Meeker on November 12 or 13, 2012, and she told him “she and three other subjects[, David Hevron, a female named Cayla White, and Goldie Walker] had decided to steal a car to take out of town.” They planned to meet someone who was selling a Honda Civic off Craigslist. “The plan was for her and Cayla to take the vehicle for a test drive and not return it.” Walker and Hevron dropped Meeker and Cayla off at a donut shop to meet the victim, Alejandro Sanchez. Meeker and Cayla agreed to take the car for a test drive, but Sanchez got into the back seat, so they were not able to take the car. They told Sanchez they wanted to have a mechanic check out the vehicle and took it to an apartment complex where Hevron and Walker were waiting. When they were at the apartment complex, defendant came out. According to Meeker, defendant was not part of the original plan and Meeker did not know he was going to be there. She denied seeing defendant pointing a weapon at someone on November 12, 2012.

Corporal Brett Vestal of the Fresno police was on duty in a marked patrol car on November 12, 2012, when he heard a broadcast regarding a carjacking of a blue Honda Civic. He went to a known high-crime area in an effort to locate the stolen car. Another officer, Sergeant Jerardo Chamalbide, broadcast over the radio that he had located the car nearby. Chamalbide was in an undercover, unmarked truck. Vestal located both Chamalbide, the Honda Civic, and an accompanying Toyota Tacoma driving on the freeway, and he followed them. All of the cars exited the freeway where other patrol cars were waiting. All of the units followed Vestal’s car as he attempted to conduct a vehicle stop of the Civic by turning on his lights and siren. The Civic ran a red light and continued westbound while the Toyota Tacoma went in a different direction. Vestal pursued the Civic with four other patrol cars behind him. At the next intersection, the Civic squeezed between two occupied lanes and ran another red light as Vestal followed. The Civic sped up to 80 miles per hour (in excess of the speed limit) and attempted to turn at another intersection but it was traveling too fast, slid into a front yard, and continued into the actual house. According to Vestal, defendant, the driver, exited the car and ran through the neighborhood. Vestal broadcasted that defendant was running and Vestal stayed with the car. Seconds later other officers arrived and they approached the Civic. Hevron was still inside the car and the police recovered a replica firearm from the passenger floorboard.

Officer James Young was working routine patrol that night with a canine officer when he heard a call regarding an armed carjacking. He followed Vestal’s patrol car once it exited the highway in pursuit of the Civic. During the high-speed chase, Officer Young prepared to release the canine officer to pursue the suspect on foot if necessary. When he saw defendant exit the Civic, Officer Young continued to follow him and stopped his patrol car. He announced “Stop, police, canine.” Defendant tried to unlock a fence gate to run into a backyard at which point Officer Young released his canine to apprehend defendant. The canine bit defendant as he tried to climb the fence and defendant fell back down to the ground. Officer Young waited for some time to approach because he was not sure if defendant was armed. Defendant refused to comply with orders to show his hands and was struggling against the officers trying to handcuff him. Eventually, Officer Young took defendant into custody.

Verdict

The jury convicted defendant of counts 1, 2, 5, 6, 7, 8, 9, 10, 11, and 12. The court sentenced defendant to 25 years to life under the three strikes law on count 8 for felony carjacking, enhanced by two 5-year terms based on defendant’s two prior section 667, subdivision (a)(1) convictions, for a total commitment on count 8 of 10 years, plus 25 years to life. The court noted the jury also found true four section 667.5, subdivision (b) prison priors but the court struck each of these one-year enhancements. The court imposed and stayed, pursuant to section 654, a 25-year-to-life sentence on count 9 (felony robbery) enhanced by two 5-year terms based on defendant’s two prior section 667, subdivision (a)(1) convictions. The court imposed and stayed aggravated terms of six years as to counts 10 and 11 (felony theft or driving and receipt of Sanchez’s car). The court imposed a 16-month consecutive term for count 12 (one-third the middle term) for defendant’s felony violation of Vehicle Code section 2800.2, subdivision (a) alleged in count 12. The court imposed a 16-month consecutive term for count 1 (one-third the middle term) for defendant’s felony violation of Vehicle Code 10851, subdivision (a) as to Serna and Payan. The court stayed an additional term on count 2 (for felony receipt of Serna/Payan’s car) pursuant to section 654. The court imposed a 16-month consecutive term for count 5 (one-third the middle term) for defendant’s felony violation of Vehicle Code 10851, subdivision (a) as to Kent’s car. The court stayed an additional term on count 6 (for felony receipt of Kent’s car) pursuant to section 654. Finally, it held defendant would receive credit for time served on misdemeanor count 7. Accordingly, the court ordered in total a 14-year determinate sentence, plus 25 years-to-life indeterminate term.

DISCUSSION

I. Insufficient Evidence Supports Defendant’s Conviction for Felony Evading a Peace Officer in Violation of Vehicle Code Section 2800.2 (count 12)

Defendant contends, and the People concede, the prosecution failed to prove the pursuing officer was a peace officer wearing a distinctive uniform as necessary to establish a violation of Vehicle Code section 2800.2, requiring reversal of defendant’s conviction on count 12.

A. Standard of Review

On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence “‘is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) The reviewing court’s task is to review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—evidence that is reasonable, credible, and of solid value upon which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Johnson (1980) 26 Cal.3d 557, 578.)

“The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) It is the jury, not the appellate court, which must be convinced of a defendant’s guilt beyond a reasonable doubt. (Ibid.) If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (Ibid.)

We “presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis … is there sufficient substantial evidence to support”’ the jury’s verdict.” (Ibid.)

B. Applicable Law

Vehicle Code section 2800.1, subdivision (a) details the offense of evading a police officer. It provides in relevant part:

“(a) Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer’s motor vehicle, is guilty of a misdemeanor punishable by imprisonment in a county jail for not more than one year if all of the following conditions exist:

“(1) The peace officer’s motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp.

“(2) The peace officer’s motor vehicle is sounding a siren as may be reasonably necessary.

“(3) The peace officer’s motor vehicle is distinctively marked.

“(4) The peace officer’s motor vehicle is operated by a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, and that peace officer is wearing a distinctive uniform.”

“Thus, the statute requires four distinct elements, each of which must be present: (1) a red light, (2) a siren, (3) a distinctively marked vehicle, and (4) a peace officer in a distinctive uniform.” (People v. Hudson (2006) 38 Cal.4th 1002, 1008.) The prosecution must prove each element beyond a reasonable doubt. (People v. Byrd (2016) 1 Cal.App.5th 1219, 1223.)

Vehicle Code section 2800.2, the statute under which defendant was charged, makes it a crime for a motorist to flee from, or attempt to elude, a pursuing peace officer’s vehicle in “violation of Section 2800.1” and “in a willful or wanton disregard for the safety of persons or property”:

“(a) If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by confinement in the county jail for not less than six months nor more than one year. The court may also impose a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or may impose both that imprisonment or confinement and fine.

“(b) For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs.” (Veh. Code, § 2800.2.)

C. Analysis

Defendant argues “there was no testimony about what Officer Vestal, the pursuing officer, was wearing during the [November 12, 2012,] chase.” Thus, he contends, the evidence was insufficient to establish the elements of a violation of Vehicle Code section 2800.2, subdivision (a). He notes, “[t]he fact that Officer Vestal was in a patrol unit and was in a patrol car was not sufficient to prove that he was wearing a ‘distinctive uniform.’” He further contends, if this issue is deemed waived, his counsel was ineffective for failing to object. The People agree defendant’s conviction for count 12 must be reversed because there was no evidence regarding what Corporal Vestal was wearing when he pursued defendant on November 12, 2012. We accept the People’s concessions and agree defendant’s conviction on count 12 must be reversed on this basis.

Vehicle Code section 2800.2, subdivision (a) incorporates by reference section 2800.1, subdivision (a), which requires the peace officer a defendant evaded to be wearing a distinctive uniform. (See People v. Hudson, supra, 38 Cal.4th at p. 1011.) For purposes of Vehicle Code section 2800.2, “‘a law enforcement officer’s “distinctive uniform” is the clothing prescribed for or adopted by a law enforcement agency which serves to identify or distinguish members of its force.’” (People v. Byrd, supra, 1 Cal.App.5th at p. 1223; see People v. Mathews (1998) 64 Cal.App.4th 485, 490.) “‘The statute does not require that the uniform be of any particular level of formality or that it be complete.’” (People v. Byrd, supra, at p. 1223, quoting People v. Estrella (1995) 31 Cal.App.4th 716, 724.) Nor does the statute require that the person eluding capture actually see that the police officer is wearing a distinctive uniform. (Byrd, supra, at p. 1223; Estrella, supra, at p. 724.)

As the parties note, there is no evidence in the record regarding Corporal Vestal’s attire on November 12, 2012, when he was pursuing defendant. “To infer evidence of a distinctive uniform rather than plainclothes or another less-than-distinctive outfit from the evidence in the record before us would be pure speculation.” (People v. Byrd, supra, 1 Cal.App.5th at p. 1224.) Accordingly, because this was a required element for conviction under Vehicle Code section 2800.2, subdivision (a), the evidence presented at trial was insufficient to support this conviction. (See Byrd, supra, at pp. 1223–1224 [insufficient evidence supported conviction for violation of Veh. Code, § 2800.2, subd. (a) because no evidence was presented pursuing officers were distinctively uniformed despite evidence defendant admitted he saw patrol car behind him with lights on and decided to flee from police].)

Thus, we reverse defendant’s conviction on count 12.

II. Defendant’s Convictions for Counts 1 and 10 (Felony Violations of Veh. Code, § 10851) Must Be Reversed Based on Instructional Error

Defendant next argues his Vehicle Code section 10851 convictions (counts 1, 5 & 10) must be reversed and remanded for a new trial because the court failed to give proper jury instructions.

A. Relevant Procedural History

The court instructed the jury:

“The defendant is charged in Count 1, Count 5 and in Count 10 with unlawfully taking or driving a vehicle in violation of Vehicle Code section 10851(a).

“To prove that the defendant is guilty of this crime, the People must prove that:

“One, the defendant took or drove someone else’s vehicle without the owner’s consent;

“And two, when the defendant did so, he intended to deprive the owner of possession or ownership of the vehicle for any period of time.

“A taking requires that the vehicle be moved for some—for any distance, no matter how small.

“A vehicle includes a passenger vehicle.

“The defendant is charged in Count 2, Count 6 and Count 11 with receiving stolen property, a motor vehicle, in violation of Penal Code section 496d(a).

“To prove that the defendant is guilty of this crime, the People must prove that:

“One, the defendant received property that had been stolen;

“And two, when the defendant received the property, he knew that the property had been stolen.

“Property is stolen if it was obtained by any type of theft or by burglary or robbery. Theft includes obtaining property by larceny, embezzlement, false pretense or trick.

“To receive property means to take possession and control of it. Mere presence near or access to the property is not enough. Two or more people can possess the property at the same time. A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person.”

B. Applicable Law

1. Proposition 47

“Proposition 47 was passed by voters at the November 4, 2014, General Election, and took effect the following day. The measure’s stated purpose was ‘to ensure that prison spending is focused on violent and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated from this act into prevention and support programs in K–12 schools, victim services, and mental health and drug treatment,’ while also ensuring ‘that sentences for people convicted of dangerous crimes like rape, murder, and child molestation are not changed.’ (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70 (Voter Information Guide).) To these ends, Proposition 47 redefined several common theft- and drug-related felonies as either misdemeanors or felonies, depending on the offender’s criminal history.” (People v. DeHoyos (2018) 4 Cal.5th 594, 597–598; accord, People v. Martinez (2018) 4 Cal.5th 647, 651.)

Proposition 47 provided for prospective changes to the law and for retrospective relief in the form of a petitioning process for those convicted and serving final sentences, or those who completed their sentences, prior to the measure’s passage. (§ 1170.18, subds. (a), (f); People v. DeHoyos, supra, 4 Cal.5th at pp. 597–598; People v. Martinez, supra, 4 Cal.5th at p. 651.)

2. Page decision

Approximately three years after the passage of Proposition 47 and ten months after the trial in this case, the California Supreme Court addressed the applicability of Proposition 47 to Vehicle Code section 10851, subdivision (a), which proscribes driving or taking a vehicle without the owner’s consent “with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle ….” (Veh. Code, § 10851, subd. (a).) The statute criminalizes “‘a wide range of conduct’” (People v. Garza (2005) 35 Cal.4th 866, 876), and in People v. Page (2017) 3 Cal.5th 1175 (Page), the high court concluded that “if the defendant was convicted under Vehicle Code section 10851, subdivision (a), of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession, he has, in fact, ‘suffered a theft conviction.’ [¶] By its terms, Proposition 47’s new petty theft provision, section 490.2, covers the theft form of the Vehicle Code section 10851 offense. As noted, section 490.2, subdivision (a), mandates misdemeanor punishment for a defendant who ‘obtain[ed] any property by theft’ where the property is worth no more than $950. An automobile is personal property. ‘As a result, after the passage of Proposition 47, an offender who obtains a car valued at less than $950 by theft must be charged with petty theft and may not be charged as a felon under any other criminal provision.’” (Page, supra, at p. 1183.)

C. Analysis

Defendant argues his Vehicle Code section 10851 convictions (counts 1, 5 & 10) must be reversed and remanded in light of Proposition 47, People v. Gutierrez (2018) 20 Cal.App.5th 847 and Page, because the court failed to instruct the jury the People had to establish the vehicles were worth $950 or more to sustain a felony theft violation of Vehicle Code section 10851. He contends, on remand, the trial court should instruct the prosecution it can either accept reductions of these convictions to misdemeanors or seek a new trial on these counts with appropriate jury instructions. The People agree counts 1 and 10 should be remanded for potential reduction or retrial, but they argue remand is unnecessary for count 5 “because the record establishes beyond a reasonable doubt that the conviction was obtained based on a theory of post-theft driving, not theft.” We agree with the People and conclude counts 1 and 10 must be reversed and remanded but count 5 is affirmed because the record establishes beyond a reasonable doubt the jury convicted defendant on a posttheft driving theory of liability.

“When a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground.” (People v. Chiu (2014) 59 Cal.4th 155, 167.) Unlike with other types of instructional error, prejudice is presumed with this type of error. “[T]he presumption is that the error affected the judgment: ‘“Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law …. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error.”’” (In re Martinez (2017) 3 Cal.5th 1216, 1224.) “An instruction on an invalid theory may be found harmless when ‘other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary’ under a legally valid theory.” (Id. at p. 1226.)

It is undisputed defendant was charged with three felony counts of driving or taking a vehicle in violation of Vehicle Code section 10851, the jury was instructed on driving or taking pursuant to CALCRIM No. 1820, and the jury convicted defendant of unlawful driving or taking of a motor vehicle as to each of these counts. Pursuant to Page, when a violation of Vehicle Code section 10851 is “based on theft,” a defendant can be convicted of a felony only if the vehicle was worth more than $950 and the prosecution must establish the vehicle was taken with an intent to permanently deprive the owner of its possession, “a taking with intent to steal the property.” (Page, supra, 3 Cal.5th at pp. 1182; see id. at pp. 1187–1188.) The court’s instructions in this case included neither of these essential elements for a felony vehicle theft conviction, thus resulting in instructional error. (Id. at p. 1187.) Accordingly, the court’s instructions allowed the jury to convict defendant of a felony violation of Vehicle Code section 10851 for stealing the cars, even though no value was proved—a legally incorrect theory—or for a nontheft taking or driving offense—a legally correct one. Thus, instructional error occurred.

Here, the record does not reveal whether the jury convicted defendant of counts 1 and 10 based on the taking versus posttheft driving of the vehicles. (See People v. Gutierrez, supra, 20 Cal.App.5th at p. 857.) Thus, we cannot conclude the instructional error was harmless beyond a reasonable doubt as to counts 1 and 10, and these counts must be reversed and remanded for reduction to misdemeanors or retrial. (See Page, supra, 3 Cal.5th at p. 1187 [“obtaining an automobile worth $950 or less by theft constitutes petty theft under section 490.2, and is punishable only as a misdemeanor”].)

However, with regard to count 5, the prosecutor did not argue defendant stole Danielle Kent’s car. Rather, he focused his argument on defendant’s posttheft driving: “[Defendant] did not have Ms. Kent’s permission to drive her car. She has never met him before. No one had permission to drive her car. It was not like someone else gave him permission. The car was stolen. And he knew it was stolen. He admitted that to Sergeant Whitney that he knew the vehicle was stolen. And we have heard no testimony, no evidence, no anything about an attempt to return it, or, oh, I found it and I called the police. No, he found it and then he ran from the police actually.” There was also limited, if any, evidence connecting defendant to the theft of the car.

Additionally, the evidence of posttheft driving was exceedingly strong such that no reasonable jury would have convicted defendant of theft but not posttheft driving. Specifically, Officer Whitney testified he saw defendant driving Kent’s stolen car. And when he spoke to defendant minutes after defendant was apprehended, defendant denied stealing the car and stated “another person who was in the car that he knew as Money stole the car.” However, defendant admitted he knew the car was stolen and he had driven it. He also admitted he ran from the police and knew that it was law enforcement pursuing him.

“In light of this overwhelming evidence of defendant’s posttheft driving, even if every juror believed that defendant both took the car and drove it after the theft was complete, no reasonable juror could have found that he took the car but did not drive it after the theft was complete. [Citation.] Thus, the jury necessarily found that defendant drove the car in an act that was distinct from and independent of the taking of the car. This act constituted a separate offense for which defendant could be separately convicted. [Citation.] Even if there had been substantial evidence that defendant took the car, such that the ‘evidence was consistent either with driving, or with taking and driving,’ ‘no reasonable juror could have found taking alone.’” (People v. Calistro (2017) 12 Cal.App.5th 387, 403.)

Because the record conclusively demonstrates the jury rested its verdict on the legally correct nontheft theory of driving the stolen vehicle without consent in violation of Veh. Code, § 10851, reversal of defendant’s conviction on count 5 is unwarranted. (See People v. Lara (2019) 6 Cal.5th 1128, 1138 [reversal of count not required where court’s instruction supported by lawyers’ arguments focused exclusively on the nontheft variant of the Vehicle Code section 10851 offense and no evidence directly implicated the defendant in initial theft]; People v. Garza, supra, 35 Cal.4th at p. 871 [“[U]nlawful driving of a vehicle is not a form of theft when the driving occurs or continues after the theft is complete …. Therefore, a conviction under [Vehicle Code] section 10851(a) for posttheft driving is not a theft conviction”]; but see People v. Jackson (2018) 26 Cal.App.5th 371, 380–381 [presumption of prejudice not rebutted where juror may have found theft without also finding posttheft driving based on defendant’s possession of stolen vehicle under suspicious circumstances shortly after it was stolen and no one saw defendant actually drive vehicle and he was not driving it when arrested].)

Additionally, though it is not raised by the parties, as to counts 1 and 10, a defendant convicted under Vehicle Code section 10851, subdivision (a) of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession has suffered a theft conviction and may not also be convicted of receiving the same vehicle as stolen property under Penal Code section 496d. (See Page, supra, 3 Cal.5th at p. 1183.) Here, though in his closing argument the prosecutor mentioned the “10851 Vehicle Code counts and … receiving stolen property, automobile counts, the Penal Code 496d, they are, alternative counts,” the jury was not instructed that if it found defendant guilty of unlawfully taking a vehicle with intent to permanently deprive the owner of possession of it under Vehicle Code section 10851 it could not also convict defendant of receiving the same vehicle under Penal Code section 496d. We are, therefore, unable to conclude from the record beyond a reasonable doubt that the jury convicted defendant of counts 1 and 10 based on a theory of posttheft driving rather than the theft itself. Because we are reversing defendant’s convictions as to counts 1 and 10, the section 496d convictions may stand. But, upon remand, should the People choose to reimpose and reduce defendant’s convictions on counts 1 and 10 to misdemeanors, defendant’s related convictions for receipt of these vehicles under section 496d, counts 2 and 11, must be stricken.

III. Prosecutor’s Statement in Closing Argument Did Not Constitute Prejudicial Griffin Error

Defendant next argues the prosecutor’s argument the jury heard no testimony to the effect that defendant “found the car, and attempted to return it to the police” amounted to Griffin error, an impermissible comment on defendant’s failure to testify, mandating reversal of his convictions.

A. Relevant Procedural History

During his closing argument, the prosecutor argued:

“On October 26th, the Danielle Kent vehicle, the defendant is charged with two crimes. The first one we have seen before, it is unlawful taking or driving of a motor vehicle. And I am not going to spend a lot of time on it. He did not have Ms. Kent’s permission to drive her car. She has never met him before. No one had permission to drive her car. It was not like someone else gave him permission. The car was stolen. And he knew it was stolen. He admitted that to Sergeant Whitney that he knew the vehicle was stolen. And we have heard no testimony, no evidence, no anything about an attempt to return it, or, oh, I found it and I called the police. No, he found it and then he ran from the police actually.”

B. Standard of Review and Applicable Law

“Pursuant to Griffin, it is error for a prosecutor to state that certain evidence is uncontradicted or unrefuted when that evidence could not be contradicted or refuted by anyone other than the defendant testifying on his or her own behalf. [Citations.] … [I]t is error for the prosecution to refer to the absence of evidence that only the defendant’s testimony could provide. [Citation.] But although ‘“Griffin forbids either direct or indirect comment upon the failure of the defendant to take the witness stand,”’ the prohibition ‘“does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or call logical witnesses.”’ [Citation.]” People v. Hughes (2002) 27 Cal.4th 287, 371–372; see People v. Bradford (1997) 15 Cal.4th 1229.)

In People v. Bradford, supra, 15 Cal.4th 1229, the Supreme Court concluded the prosecutor did not commit misconduct during closing argument by making “brief comments” noting the absence of evidence contradicting the prosecution’s evidence and the defense’s failure to present material evidence or alibi witnesses. (Id. at p. 1339.) It rejected the defendant’s argument the prosecutor’s comments “impermissibly shift[ed] the burden of proof to defendant.” (Id. at p. 1340.) Rather, it held “[a] distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.” (Ibid.)

C. Analysis

Defendant argues the “I” referred to in the prosecutor’s argument there was “no testimony, no evidence, no anything about an attempt to return [Kent’s car], or, oh, I found it and I called the police” (italics added), could only have referred to defendant. Thus, he asserts, this was a direct comment on defendant’s failure to testify amounting to Griffin error. Defendant notes his counsel did not object to the challenged comment but he argues “an objection is not required where a retraction by the prosecutor or admonition by the court would not have cured the harm.” He also contends an admonition could not have “unrung” the bell that defendant had failed to testify. He further justifies the failure to object by asserting an objection “can serve to magnify, rather than reduce, the harm of prosecution [sic] misconduct.” Finally, he argues the doctrine of forfeiture as it relates to Griffin error “is on shaky ground.” He asserts even if the issue was technically forfeited, our court should apply a “plain error rule exception” as federal courts do to “‘temper the blow of a rigid application of the contemporaneous objection rule.’” And he contends the People cannot establish beyond a reasonable doubt that he was not prejudiced by the error because the evidence in this case was not overwhelming.

The People respond defendant’s failure to object at trial on the basis of Griffin error forfeited this claim on appeal. They contend defendant’s justifications for failing to object, including that such an objection would have been futile, are meritless because the court could have admonished the jury if an objection had been lodged. Additionally, they assert “plain error review” or “plain error rule exception” does not apply here given that the California Supreme Court has rejected its adoption in capital cases. Irrespective, they contend the prosecutor’s comment did not amount to Griffin error because it related to defendant’s statement to the arresting officers and was a permissible comment on the state of the evidence. They also assert this is not a case where the prosecutor stated certain evidence was uncontradicted or unrefuted where only defendant could contradict or refute it by testifying on his own behalf. They contend even if error occurred, it was harmless beyond a reasonable doubt because the evidence of defendant’s guilt on count 5 was strong; he admitted to driving the car knowing it was stolen. Additionally, the evidence on the remaining counts was also strong such that the alleged Griffin error did not fill any “evidentiary gap.” Finally, they contend the jury is presumed to have followed the trial court’s admonition that a defendant has an absolute constitutional right not to testify and to not consider for any reason at all that he did not testify.

As the People argue, generally, a criminal defendant forfeits an appellate claim of Griffin error by failing to object at trial. (See People v. Valdez (2004) 32 Cal.4th 73, 127; People v. Brown (2003) 31 Cal.4th 518, 554; People v. Hughes, supra, 27 Cal.4th at p. 372, 373.) However, even assuming, arguendo, the error had been adequately preserved or the failure to object justified, we find no Griffin error. (People v. Valdez, supra, at p. 127.)

Here, minutes after he was pursued and arrested in connection with Kent’s stolen vehicle, defendant admitted to Officer Whitney that he knew the car was stolen. He also admitted he had driven the car. There was no evidence introduced, through Officer Whitney or otherwise, that defendant reported the stolen vehicle to the police or attempted to return it. And the prosecutor’s argument was a fair comment on the state of the evidence. (See People v. Brown, supra, 31 Cal.4th at p. 554 [prosecutor directing jury’s attention to fact defendant never presented evidence he was somewhere else when crime was committed was not Griffin error but fair comment on evidence]; People v. Hughes, supra, 27 Cal.4th at pp. 373–375 [prosecutor’s comments the evidence was uncontradicted, rhetorical questions to jury asking why someone would bring a knife if not intending to use it, and where questioning the evidence to support the defense did not amount to Griffin error but were fair comments on evidence]; People v. Medina (1995) 11 Cal.4th 694, 755–756 [prosecutor’s comments that defense failed to provide rational explanation for why defendant was armed was a permissible remark on the evidence, not on defendant’s silence].) The prosecutor did not mention the lack of a “denial” by defendant or otherwise refer to a lack of refutation by defendant himself. (See People v. Bradford, supra, 15 Cal.4th at p. 1339 [prosecutor did not allude to lack of refutation or denial by defendant but rather to lack of evidence which might have been presented as physical evidence or testimony (other than that of defendant) to contradict what was produced by prosecution on several points]; cf. People v. Vargas (1973) 9 Cal.3d 470, 476 [prosecutor’s comment on lack of “denial” regarding defendant’s whereabouts amounted to Griffin error because “only defendant himself could ‘deny’ his presence at the crime scene” so jury could have interpreted remarks as comment on defendant’s failure to take stand and deny his guilt].) Accordingly, the prosecutor’s comment in closing was not a “reference to the fact that defendant did not take the stand; nor is the remark susceptible of such interpretation by inference or innuendo.” (People v. Bethea (1971) 18 Cal.App.3d 930, 936.) Thus, it did not amount to an improper comment on defendant’s failure to testify.

Additionally, the prosecutor did not argue defendant had a burden to produce any evidence or to prove his innocence. Rather, he repeatedly stated the prosecution bore the burden of establishing defendant’s guilt beyond a reasonable doubt, noting “none of this is the defendant’s burden.” Defense counsel also reiterated the prosecutor “has the entire burden in this case. He acknowledges it, he accepts it.” Accordingly, the prosecutor’s brief comment regarding the lack of material evidence did not impermissibly shift the burden of proof to defendant. (See People v. Bradford, supra, 15 Cal.4th at p. 1340 [“A distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence”]; see also People v. Ratliff (1986) 41 Cal.3d 675, 691.)

We reject defendant’s third contention.

IV. The Court Did Not Abuse Its Discretion by Excluding Alleged Third Party Culpability Evidence

Defendant next contends the trial court abused its discretion and violated his constitutional rights to due process and to present a defense by excluding third party culpability evidence that the phone used to call Payan to set up the appointment to see Serna’s car was owned by another individual who resembled the physical description of the person who stole the car.

A. Relevant Procedural History

During trial, defense counsel explained Officer Brian Chadwick investigated the phone number from which Payan reported he received a phone call to set up the meeting to see the Caprice. The phone number was traced back to two people, Jonathan Boyd and Deondre or Leondre Stamps. According to defense counsel, “because Jonathan Boyd … tended to match the description given by Mr. Payan,” Detective Havens included him in the photographic lineup. Payan did not identify Boyd in the lineup. Defense counsel argued he intended to introduce evidence of the telephone number and the subsequent investigation linking it to Jonathan Boyd and Deondre or Leondre Stamps.

The People objected to that line of questioning. They argued Officer Chadwick received information regarding the source of the phone number from Fresno Police Department dispatch. Officer Havens did not conduct an independent check on the phone number but instead relied on Officer Chadwick’s report regarding the identification of Stamps and Boyd. They asserted Officer Chadwick’s communications with dispatch and any reports of association given by dispatch to him regarding the source of the number would be hearsay. Additionally, the People objected on Evidence Code section 352 grounds, arguing “there is no evidence before the jury that Jonathan Boyd or Leondre Stamps were involved in these crimes. And in fact the evidence appears to be that, if anything, these were maybe identities of [Goldie Walker], not as an alternative identity for [defendant].” Accordingly, such evidence did not prove or disprove any charge in the case pertaining to defendant and it could be confusing to the jury and more prejudicial than probative.

The court held such evidence inadmissible, noting it involved hearsay statements that may not be admissible under an exception, “[b]ut more problematic … is [Evidence Code section] 352.” The court questioned the probative value of such evidence, noting “it really doesn’t matter who owns the phone” or “whose name it may be under …. What matters is who had possession of the phone, who used the phone at a particular date and time at issue in this case.” Accordingly, the court concluded the evidence of “who was associated with the phone” was not probative of the issue before the court and was ultimately to be decided by the jurors. It sustained the People’s hearsay and Evidence Code section 352 objections and held the admission of such evidence would lead to an undue consumption of time, could result in juror confusion because it would bring in names unassociated with any conduct in the case, and such evidence was irrelevant.

B. Standard of Review and Applicable Law

1. Admissibility of evidence of third party culpability

All relevant evidence is admissible except as otherwise provided by a statutory or constitutional exclusionary rule. (See Cal. Const., art. I, § 28, subd. (f)(2); Evid. Code, § 351.) Relevant evidence is defined as evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) The general test of relevance “‘is whether the evidence tends “logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive.’” (People v. Bivert (2011) 52 Cal.4th 96, 116.)

A court may exclude evidence “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) “Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) “Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (Id. at pp. 1124–1125; see People v. Olguin (1994) 31 Cal.App.4th 1355, 1369–1370.) An appellant has the burden to establish an abuse of discretion and prejudice. (People v. Jordan (1986) 42 Cal.3d 308, 316.) “[S]tate law error in admitting evidence is subject to the traditional Watson [People v. Watson (1956) 46 Cal.2d 818] test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error.” (People v. Partida (2005) 37 Cal.4th 428, 439.) Federal due process is offended only if admission of the irrelevant evidence renders the trial fundamentally unfair. (Ibid.)

In People v. Hall (1986) 41 Cal.3d 826, the California Supreme Court held that to be admissible, evidence of third party culpability must be capable of raising a reasonable doubt of the defendant’s guilt. (Id. at p. 833; see People v. Davis (1995) 10 Cal.4th 463, 501.) “[E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt; there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” (People v. Hall, supra, at p. 833.)

A trial court’s ruling excluding third party culpability evidence is reviewed for an abuse of discretion. (People v. Elliott (2012) 53 Cal.4th 535, 581.)

2. Defendant’s constitutional right to present a defense

While a defendant has a right to present a complete defense at trial, state evidentiary rules do not ordinarily infringe upon this right. (See People v. Hall, supra, 41 Cal.3d at p. 834 [“As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s (constitutional) right to present a defense. Courts retain … a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice”].) Indeed, the United States Supreme Court has noted:

“‘[T]he Constitution guarantees criminal defendants “a meaningful opportunity to present a complete defense,”’ [citation], but we have also recognized that ‘“state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials,”’ [citation]. Only rarely have we held that the right to present a complete defense was violated by the exclusion of defense evidence under a state rule of evidence.” (Nevada v. Jackson (2013) 569 U.S. 505, 508.)

And “rules regulating the admission of evidence proffered by criminal defendants to show that someone else committed the crime with which they are charged,” “are widely accepted” as not violating a defendant’s constitutional right to present a defense. (Holmes v. South Carolina (2006) 547 U.S. 319, 327.)

“It follows, for the most part, that the mere erroneous exercise of discretion under such ‘normal’ rules does not implicate the federal Constitution. [Our Supreme Court has] consistently assumed that when a trial court misapplies Evidence Code section 352 to exclude defense evidence, including third-party-culpability evidence, the applicable standard of prejudice is that for state law error, as set forth in People v. Watson[, supra,] 46 Cal.2d 818, 836 …. [Citations.]” (People v. Cudjo (1993) 6 Cal.4th 585, 611.)

C. Analysis

Defendant contends the “trial court abused its discretion in excluding third-party culpability evidence that the phone number used to set up the appointment to test drive Payan’s vehicle was that of Jonathan Boyd, who physically resembled the description of the person who drove off with the vehicle.” He argues such evidence “tended to raise doubt” regarding his culpability because it was reasonable to infer the person who arranged the appointment stole the vehicle. Relatedly, defendant argues the “trial court failed to hold a sufficient hearing on the admissibility of this evidence” or “properly weigh the probative value of this evidence,” and “improperly found that the evidence was barred by hearsay rules.” He also contends the evidence should not have been excluded as hearsay because it “could have come in under Evidence Code section 1340 as a compilation of data” or “under the business record exception to the hearsay rule.” He contends the error was prejudicial because it related to the key disputed issue as to counts 1 and 2—the identity of the perpetrator. The People argue the trial court properly excluded the evidence based on hearsay concerns and under Evidence Code section 352. They further contend defendant did not argue a hearsay exception applied to such evidence below and thus, forfeited the argument an exception applies on appeal. We agree with the People.

The trial court did not abuse its discretion in excluding such evidence and concluding its potential for prejudice outweighed its probative value under Evidence Code section 352. As the court noted, evidence of who owned the phone used to set up the meeting with Payan was not highly probative of the issue before the court and would be ultimately decided by the jurors: the identity of the person who actually had possession of the phone, met with Payan, and took the car. According to defense counsel, the alleged report reflected the owner of the phone could have been Boyd or Stamps, and Payan did not identify an image of Boyd—who defendant argued resembled the description of the perpetrator—as an individual involved in the offense. Thus, the relevance of such evidence was in question and it had the potential to confuse the jury and consume time unnecessarily. The court’s exercise of discretion under Evidence Code section 352 excluding such alleged third party culpability evidence did not violate the Constitution by infringing on defendant’s ability to present a defense (See People v. Hall, supra, 41 Cal.3d at p. 834.)

In any event, any error in excluding the evidence was harmless because it is not reasonably probable defendant would have obtained a more favorable result had the evidence been admitted. (People v. Watson, supra, 46 Cal.2d at p. 836.) Payan repeatedly identified with certainty defendant as the perpetrator. The fact the alleged owner of the phone may have resembled Payan’s description of the perpetrator did not, standing alone, render it reasonably probable the jury would have rejected Payan’s eyewitness identification and the other evidence linking defendant to the stolen vehicle.

Accordingly, we reject defendant’s fourth contention.

V. Prosecutor’s Comment on the Reasonable Doubt Standard in Closing Argument Was Harmless

In his final contention, defendant argues the prosecutor engaged in prejudicial misconduct in violation of his due process rights by illustrating “proof beyond a reasonable doubt” with the example of an ordinary person deciding to make a turn while driving (e.g., “if you [the driver] had a reasonable doubt about the safety of making that turn, you would not make the turn”). He further contends, if this issue was waived for failure to object, his counsel was ineffective.

A. Relevant Procedural History

The court instructed the jury the People must prove defendant guilty beyond a reasonable doubt. It explained, “Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.”

During his closing argument, the prosecutor attempted to explain the reasonable doubt standard, arguing:

“[I]t is my burden, the People of the State of California have an obligation, as the judge told you, to prove every crime beyond a reasonable doubt. And that is the highest standard under the law. It is important that is a high burden. This is a serious burden that we’re doing.… [¶] … [¶]

“The burden is on the People. And we call it proof beyond a reasonable doubt. So the judge read you an instruction, it was actually the last instruction he read to you, it was instruction 220, and he described proof beyond a reasonable doubt as an abiding conviction that the charges are true. And that is not the clearest statement in the world, is it? An abiding conviction that the charges are true is old language. It dates actually back, I think, from the 19th century. And I submit to you that an abiding conviction means essentially a strong belief. It means that this is something, not just a casual belief that you have that these charges are true, but you believe it, you’re convinced. The ruling—or the law does give you some guidance. It tells you that proof beyond a reasonable doubt is not absolute certainty. That it’s not imaginary doubt or possible doubt. That everything in life is open to some imaginary or possible doubt. If you say it is possible that something else happened, that is the kind of okay doubt to have. And in fact, if any of you knew beyond any doubt that these events occurred, you wouldn’t be jurors, you would be witnesses. It is okay to have doubts. The question is if those doubts are reasonable. And one way to think about that is whether or not there is a reasonable explanation of the facts as you heard them that lead to innocence. If the only reasonable conclusion is that the defendant committed these crimes, I’d submit to you that he is guilty beyond a reasonable doubt.

“I have an example I like to use when I think about reasonable doubt. So I believe we use this standard actually in our ordinary lives. And I’m going to think about driving, just a trip from Fig Garden to here. Got Hungry Bear Cookies in Fig Garden. Some part of those decisions are not decisions we make beyond a reasonable doubt. When you decide to drive from Fig Garden to here, you make a decision about what road to take. Do you drive straight down Palm to downtown? Do you go over to 41 and take 41 down to downtown? I guess you can go down Shaw to 99 and take 99 to downtown. You are going to decide, based on traffic and how long you think it is going to take and if you have other stops, you are going to decide which route is best for you. That is a decision you are not making beyond a reasonable doubt. If one route is a little better than another, you will choose that route. That is a preponderance of the evidence standard, the kind of standard we do not use in criminal trials.

“And if at the conclusion of this case you just think it is a little more likely than not the defendant did it, do not convict. If it is just a little more likely than not, acquit. That is your job. But that is not our standard here. Our standard here is proof beyond a reasonable doubt. And we make those decisions when we drive also. So the reason I choose Fig Garden is because to get out of Fig Garden on Palm, you have to make an unprotected left turn, or at least one of the exits you do. And when we make a left turn or a right turn or we change lanes, we make a decision. And that is a decision I would submit to you we do make beyond a reasonable doubt. We want to have no reasonable doubts about our safety. We look both ways, that is evaluating the evidence, we make sure that a car is not coming, and then if we think we’re not going to get hit, we make the turn. And if you had a reasonable doubt about your safety, you wouldn’t make that turn.

“So, yes, beyond a reasonable doubt is the highest standard under the law. And it is a high standard. It’s the standard we use to make important decisions, important decisions like whether or not we are going to be in a car accident. But it is not a decision that is foreign or alien to us. It is the kind of rubric, the mechanism we use to make decisions about things in our lives that have consequences. Just like this is a case with consequences. It had consequences for the victims. So that is how I would encourage you to think about beyond a reasonable doubt.”

Defense counsel did not object to these comments. He also noted during his closing, “[W]e don’t describe reasonable doubt or define it, because that’s defined in the instruction which you’ve been given.” And, in rebuttal, the prosecutor reminded the jury “the law is the law as the judge has given it to you.”

B. Standard of Review and Applicable Law

“A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44; see People v. Mendoza (2007) 42 Cal.4th 686, 700; People v. Farnam (2002) 28 Cal.4th 107, 167.) “The focus of the inquiry is on the effect of the prosecutor’s action on the defendant, not on the intent or bad faith of the prosecutor.” (People v. Mendoza, supra, at p. 700.)

It is improper for the prosecutor to misstate the law generally, and particularly to misstate the prosecution’s burden of proving every element of the crime charged beyond a reasonable doubt. (See People v. Hill (1998) 17 Cal.4th 800, 820.) “‘“[I]t is difficult, if not impossible, to give a precise and intelligible definition of what a reasonable doubt is, without extending an instruction into almost a treatise upon the subject ….”’” (People v. Johnson (2004) 119 Cal.App.4th 976, 986.) As a result, courts should stick to the pattern jury instructions on the topic. (See ibid.) However, while “‘“attempts at definition are likely to prove confusing and dangerous”’” (ibid.), not every comment on reasonable doubt constitutes reversible error. And “‘[a] defendant’s conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.’” (People v. Tully (2012) 54 Cal.4th 952, 1010.)

C. Analysis

Defendant contends the prosecutor’s use of an ordinary person’s decision to turn while driving as an example of proof beyond a reasonable doubt improperly trivialized the state’s burden of proof. He contends even if such misconduct did not amount to structural error, it violated his federal constitutional right to a jury determination based upon proof beyond a reasonable doubt and, accordingly, “[t]he error went to the heart of the defense.” Citing People v. Centeno (2014) 60 Cal.4th 659, defendant also contends there was no correction of the error in this case so there was no reason for the jury to reject the prosecutor’s hypothetical. The People respond, because defendant did not object to such argument at trial, his claim is forfeited. Additionally, they further argue “[e]ven if the claim had not been forfeited, the prosecutor’s remarks—though improper—were harmless.” We agree with the People.

“‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.’” (People v. Hill, supra, 17 Cal.4th at p. 820.) An exception is made if a timely objection or request for admonition would have been futile, or if an admonition would not have cured the harm caused by the misconduct. (Ibid.) “The reason for this rule, of course, is that ‘the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the harmful effect upon the minds of the jury.’” (People v. Green (1980) 27 Cal.3d 1, 27, overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 239.)

Defendant did not object to the prosecutor’s comments he now challenges on appeal, nor can we conclude an objection would have been futile because it would have permitted the court to instruct the jury to disregard any alleged improper comments and rely on the court’s definition of reasonable doubt. Thus, his prosecutorial misconduct claim was not preserved for appeal. (People v. Dalton (2019) 7 Cal.5th 166, 259; see People v. Samayoa (1997) 15 Cal.4th 795, 841–842.)

Alternatively, defendant contends his trial counsel rendered ineffective assistance of counsel for failing to object to the prosecutor’s challenged comments below. To prove ineffective assistance of counsel, a defendant must satisfy a two-part test requiring a showing of counsel’s deficient performance and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687.) As to deficient performance, a defendant “must show that counsel’s representation fell below an objective standard of reasonableness” measured against “prevailing professional norms.” (Id. at p. 688.) The prejudice prong requires a defendant to establish “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Id. at p. 694.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Ibid.) Prejudice must be affirmatively proved. (People v. Maury (2003) 30 Cal.4th 342, 389.) Where a defendant fails to show prejudice, a reviewing court may reject a claim of ineffective assistance of counsel without reaching the issue of deficient performance. (See Strickland, supra, at p. 697.)

Defendant argues our Supreme Court’s opinion in People v. Centeno, supra, 60 Cal.4th 659 supports the conclusion the alleged error was not harmless. In Centeno, the defendant was charged with molesting a child and the prosecutor used a visual display of the State of California to illustrate the applicable standard of proof. (Id. at pp. 665–666.) The prosecutor argued:

“‘Let me give you a hypothetical. Suppose for me that there is a trial, and in a criminal trial, the issue is what state is this that is on the [overhead projector]. Say you have one witness that comes in and this witness says, hey, I have been to that state, and right next to this state there is a great place where you can go gamble, and have fun, and lose your money. The second witness comes in and says, I have been to this state as well, and there is this great town, it is kind of like on the water, it has got cable cars, a beautiful bridge, and it is called Fran-something, but it is a great little town. You have another witness that comes in and says, I have been to that state, I went to Los Angeles, I went to Hollywood, I saw the Hollywood sign, I saw the Walk of Fame, I put my hands in Clark Gable’s handprints in the cement. You have a fourth witness who comes in and says, I have been to that state.

“‘What you have is you have incomplete information, accurate information, wrong information, San Diego in the north of the state, and missing information, San Bernardino has not even been talked about, but is there a reasonable doubt that this is California? No. You can have missing evidence, you can have questions, you can have inaccurate information and still reach a decision beyond a reasonable doubt. What you are looking at when you are looking at reasonable doubt is you are looking at a world of possibilities. There is the impossible, which you must reject, the impossible [sic] but unreasonable, which you must also reject, and the reasonable possibilities, and your decision has to be in the middle. It has to be based on reason. It has to be a reasonable account. And make no mistake about it, we talked about this in jury selection, you need to look at the entire picture, not one piece of evidence, not one witness. You don’t want to look at the tree and ignore the forest. You look at the entire picture to determine if the case has been proven beyond a reasonable doubt.’” (Centeno, supra, 60 Cal.4th at pp. 665–666, fn. omitted.)

In reviewing the argument for error, the Centeno court explained the “case law is replete with innovative but ill-fated attempts to explain the reasonable doubt standard. [Citations.] We have recognized the ‘difficulty and peril inherent in such a task,’ and have discouraged such ‘“experiments”’ by courts and prosecutors. [Citation.] We have stopped short, however, of categorically disapproving the use of reasonable doubt analogies or diagrams in argument. Rather, we assess each claim of error on a case-by-case basis.” (Centeno, supra, 60 Cal.4th at p. 667.) The Centeno court further noted, “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 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.’” (Ibid.)

The Centeno court concluded it was “reasonably likely that the prosecutor’s hypothetical and accompanying argument misled the jury about the applicable standard of proof and how the jury should approach its task.” (Centeno, supra, 60 Cal.4th at p. 674.) It stressed the closeness of the case—noting in particular the victim had made inconsistent statements, recanted, and refused to answer questions, and her father also recanted what he had witnessed. (Id. at p. 676.) It also noted “[t]he prosecutor introduced further confusion by suggesting that it was ‘reasonable’ to believe that defendant was guilty,” “confound[ing] the concept of rejecting unreasonable inference with the standard of proof beyond a reasonable doubt,” and that “the prosecutor’s argument was the last word on the subject [of reasonable doubt].” (Id. at pp. 676, 673, 677.) The court determined that the reasonable doubt argument and other improper arguments prejudiced the defendant and required reversal of the judgment. (Id. at p. 677.)

In its analysis, Centeno discussed and contrasted People v. Katzenberger (2009) 178 Cal.App.4th 1260, upon which defendant also relies here in arguing error occurred. In Katzenberger, the Court of Appeal disapproved of the prosecutor’s use of a slide show to display pieces of a puzzle to illustrate the reasonable doubt standard. (Id. at p. 1264.) “The picture is immediately and easily recognizable as the Statue of Liberty. The slide show finishes when the sixth puzzle piece is in place, leaving two rectangular pieces missing from the picture of the Statue of Liberty—one in the center of the image that includes a portion of the statue’s face and one in the upper left-hand corner of the image.” (Ibid.) Over defense objection, the prosecutor argued, ‘“[w]e know [what] this picture is beyond a reasonable doubt without looking at all the pieces of that picture. We know that that’s a picture of the Statue of Liberty, we don’t need all the pieces of the [sic] it.’” (Id. at p. 1265.) The Katzenberger court concluded the presentation misrepresented the standard of proof. (Id. at p. 1266.) It reasoned the presentation invited the jurors to guess or jump to a conclusion without considering all of the evidence, an approach “completely at odds with the jury’s serious task of assessing whether the prosecution has submitted proof beyond a reasonable doubt.” (Id. at p. 1267.)

Unlike in Centeno, the Katzenberger court found the error harmless, noting such alleged prosecutorial misconduct did not amount to structural error (as defendant argues here) and is reviewed for prejudice. (People v. Katzenberger, supra, 178 Cal.App.4th at pp. 1268–1269.) In so holding, the court relied in part upon the relative strength of the evidence and commented the “‘[a]rguments of counsel “generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence [citation], and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law.” [Citation.]’ [Citation.]” (Id. at p. 1268.) “‘When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for “[w]e presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.” [Citation.]’ [Citation.]” (Ibid.)

Here, even if we were to assume the prosecutor’s comment constituted misconduct and defense counsel erred in failing to object, we conclude any alleged error was harmless. (See People v. Nguyen (1995) 40 Cal.App.4th 28, 36–37 [prosecutor’s argument suggesting reasonable doubt standard is used in daily life when considering whether to change lanes trivialized standard but was harmless where prosecutor directed jury to instruction on reasonable doubt and jury was properly instructed].) The parties do not dispute the jury was correctly instructed on the reasonable doubt standard. It was also instructed, “If you believe that the attorneys’ comments on the law conflict with [the jury] instructions, you must follow [the jury] instructions.” We presume the jury followed the jury instructions. (People v. Dalton, supra, 7 Cal.5th at pp. 260–261 [any alleged prosecutorial misconduct was not prejudicial where jury was properly instructed on reasonable doubt standard; “We presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade”].) And both defense counsel and the prosecutor in rebuttal directed the jury to follow the law as it was given to them by the judge and discussed the reasonable doubt standard further. Thus, the prosecutor’s example was not the last word the jury heard on the subject of reasonable doubt.

Additionally, unlike in Centeno and contrary to defendant’s argument, the evidence implicating defendant here was strong. As to each count, eyewitnesses provided testimony linking defendant to the alleged crimes, and defendant in fact admitted to his involvement in some of the incidents leading to his convictions. We disagree with defendant’s assertion that “the victim gave strongly contradictory accounts of what happened to him” as to counts 1 and 2. Rather, Jose Payan consistently identified defendant as the individual he met with who took his car under the false impression of taking a “test drive.”

In light of the correct instructions on reasonable doubt, admonitions by counsel and the trial court to follow the jury instructions, and the strength of the evidence, we cannot conclude defendant has established he was prejudiced. And, for the same reasons, we cannot conclude the alleged error infected the trial with such unfairness as to make the resulting conviction a denial of due process. (See People v. Morales, supra, 25 Cal.4th at p. 44; see also People v. Mendoza, supra, 42 Cal.4th at p. 700; People v. Farnam, supra, 28 Cal.4th at p. 167.)

We reject defendant’s final contention.

VI. Correction of Abstract of Judgment

The abstract of judgment in this matter lists eight prison prior enhancements pursuant to section 667.5, subdivision (b) as “stayed.” However, though the court found true eight prison prior allegations, it struck these enhancements on the record. Accordingly, the abstract of judgment should be amended to remove these enhancements, rather than listing them as “stayed.” Though the parties do not discuss this clerical error, it is within our power to correct it. (People v. Jones (2012) 54 Cal.4th 1, 89.)

DISPOSITION

Defendant’s convictions as to counts 1, 10, and 12 are reversed and remanded to the trial court for further proceedings and resentencing. On remand, the People may reduce defendant’s convictions on counts 1 and 10 to misdemeanors or retry these allegations. If defendant’s convictions on counts 1 and 10 are reduced and reimposed, the trial court is instructed to strike defendant’s convictions for counts 2 and 11. The trial court shall prepare an amended abstract of judgment reflecting the prison prior enhancements were stricken and forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

PEÑA, J.

WE CONCUR:

LEVY, Acting P.J.

MEEHAN, J.