P. v. Goethe

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Filed 8/6/15 P. v. Goethe CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
ELIJAH GOETHE,
Defendant and Appellant.
C074791
(Super. Ct. No. 12F00877)
Victims D‟Andre Lawrence and his cousin Joseph Washington were parked in
Lawrence‟s Buick in a residential neighborhood when they were shot by two men in an
SUV in apparent retaliation for a shooting that happened two hours earlier in which
Lawrence and Washington were not involved. The prosecutor‟s theory was that
defendant Elijah Goethe, a gang member, was the passenger in the SUV and fired the
shot that wounded Lawrence and defendant‟s friend was the driver of the SUV and the
person who fatally shot Washington. Lawrence and Washington were not gang members
or affiliated with any gang.

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A jury found defendant guilty of Washington‟s first degree murder, Lawrence‟s
attempted murder, and discharging a firearm at an occupied vehicle (two counts) and
found that these crimes were committed for the benefit of a street gang. The jury also
found that a principal personally discharged a firearm causing Washington‟s death and
defendant personally discharged a firearm causing Lawrence‟s great bodily injuries.
Defendant appeals, raising five contentions relating to violations of his
constitutional rights and counsel‟s ineffectiveness. We find no errors or ineffectiveness
and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I
The Prosecution’s Case
A
Background: Shooting Of Oak Park Blood Gang Members
Around 2:00 a.m. on Sunday, October 12, 2008, Oak Park Blood gang members,
including defendant‟s friend Wesley Taylor, were shot at the AM/PM gas station market
at 4th Avenue and 65th Street in Sacramento. The suspects were members of the Killa
Mobb street gang.
B
Murder Of Washington And Attempted Murder Of Lawrence
Approximately two hours after the AM/PM market shooting, Lawrence parked his
Buick in front of a friend‟s house in Sacramento. Lawrence‟s cousin, Washington, was
in the Buick with him, and the two of them were waiting for a phone call from
Lawrence‟s girlfriend.
Suddenly, an SUV pulled up in front of Lawrence‟s Buick. The SUV‟s passenger
jumped out and pointed a .38-caliber revolver at Lawrence. As the passenger approached
the Buick‟s driver‟s side, Lawrence gave a quick glance and saw the SUV‟s driver
approaching the Buick‟s right side where Washington was. Back on the driver‟s side, the

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SUV‟s passenger opened the Buick‟s driver‟s side door and shot Lawrence in the face.
When Lawrence came to, he saw Washington on the other side of the Buick, sprawled
out and immobile. Lawrence called 911.
A neighbor on another street, Jesus Rangel, heard the shootings when he was
outside leaving for work. He heard a first gunshot, turned to walk back to his house, and
then heard the second gunshot. After the second, he saw two young men run toward their
blue Blazer SUV and then drive away.
Police responded to the shootings shortly after being called. Both Lawrence and
Washington were taken to the hospital. Washington was pronounced dead from swelling
to his brain five hours after being admitted. Lawrence survived, despite being shot in his
left cheek.
C
Investigation Into The Shootings
Police lifted a latent fingerprint from the Buick‟s driver‟s side door and collected a
spent .380-caliber shell casing near the Buick. The fingerprint matched defendant‟s. The
casing matched a gun that defendant‟s uncle had fired while committing a crime a month
earlier.
With defendant as a suspect, police began surveilling the home of defendant‟s
father, Gary Goethe. When police saw a blue Ford Explorer parked in front of the
father‟s house, they took Rangel there to see if he could identify it. Rangel said the
Explorer looked similar to the SUV involved in the shootings. On the exterior of the
Explorer‟s passenger door was a characteristic gunshot residue particle and on the interior
of the front driver‟s side door was a probable gunshot residue particle. Defendant‟s
father said he never allowed defendant to drive the Explorer.
Defendant was arrested on October 15, 2008, and police interviewed him. His
friend Wes Taylor had been one of the shooting victims at the gas station on 65th Street.
Police showed defendant pictures of Lawrence and Washington. Defendant said he had

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met Lawrence and Washington on the Thursday before the shootings and talked to them
about buying Lawrence‟s Buick. Defendant got inside the car, offered $1,200 for it,
Washington said, “maybe,” and defendant left.1
Police also talked to defendant‟s father on the day defendant was arrested.
Detective Thomas Higgins of the Sacramento Police Department told the father “almost
everything” at that point that implicated defendant in the homicide. The detective also
told the father that the police believed that defendant knew who the other shooter was and
that police wanted to know. Police officers then let the father talk to defendant alone in
the interview room. The father-son conversation was recorded by one of two visible
cameras and played for the jury. Defendant did not admit to the shooting or knowing
anything about it.2
Police looked into the cell phone records of defendant and his friend Wes Taylor.
Defendant had been carrying around Taylor‟s phone since defendant visited Taylor in the
hospital after Taylor had been shot. In the hours before Washington and Lawrence were
shot, defendant exchanged a number of calls with his friend Semaj Douglas.3 At 4:21
a.m., Douglas sent defendant a text message saying, “Go 2 wes house and get the 223.”
According to police, “223” is used when people are referring to a rifle using .223-caliber
ammunition. The cell phone tower records associated with defendant‟s and Taylor‟s
phones were also used to track defendant‟s whereabouts when Washington and Lawrence
were shot. At 4:18 a.m., defendant‟s cell phone accessed a cell phone tower at Florin
1 Lawrence denied ever meeting defendant, testified he had never let anyone who
wanted to buy his car sit in his car, and testified he was not with his cousin Washington
on that Thursday.
2 The details of this conversation will be recounted in part IIIA of the Discussion.
3 The prosecutor argued in closing that Douglas was likely the driver of the SUV
and the other shooter in this case.

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Road and Luther Drive. At 4:22 a.m., Taylor‟s phone accessed a cell phone tower on
Franklin.
Police also looked into the records for Lawrence‟s cell phone. Lawrence called
911 at 4:44 a.m. and that call accessed the cell phone tower at Florin Road and Luther
Drive.
On December 3, 2008, defendant‟s father had a conversation with a person who,
unbeknownst to him, was a confidential informant. The father told the confidential
informant that he (the father) had asked defendant, “Why did you do it?” Defendant
replied, “Just because.” Then the father asked defendant, “What‟s wrong with you?”
D
The Gang Evidence
Detective John Houston was a gang expert. The Oak Park Bloods is a large street
gang in the Sacramento area. Its rival is the G-Mobb street gang. Detective Houston
reviewed over 20 reports documenting defendant‟s contact with various law enforcement
entities and formed the opinion defendant was an Oak Park Bloods gang member. He
also was of the opinion that, given a fact scenario similar to the one here, the shootings of
Washington and Lawrence were committed for the benefit of the Oak Park Bloods. It did
not matter that the victims were not gang members and had nothing to do with the prior
shootings because it showed that the Oak Park Bloods were “going to be out there” and
were “going to hold people accountable, even if it is the wrong person.”
II
The Defense
According to defendant‟s stepmother, defendant did not have access to the house
she shared with defendant‟s father. During the time Lawrence and Washington were
shot, the Ford Explorer was parked in front of their house. Defendant did not have access
to that car, either.

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According to defendant‟s girlfriend, Alia Young, she dropped defendant off at the
hospital around 2:00 a.m. to see Wes Taylor after he had been shot. Young then left the
hospital to pick up Taylor‟s girlfriend, and when Young returned, defendant had already
left the hospital and the two girlfriends were unable to visit Taylor. The two girlfriends
went to the Youngs‟ house, where defendant was with Young‟s mother and father.
Around 5:00 a.m., the two girlfriends and defendant went back to the hospital to visit
Taylor. The girlfriends and defendant all spent the night together at the Youngs‟ house
and went to church together the next morning.
III
Rebuttal
Detective Higgins checked the cell phone records of Young and defendant. There
were a number of calls between defendant and his girlfriend between 4:12 a.m. and 4:14
a.m. on the morning Washington and Lawrence were shot. The cell towers indicated the
girlfriend‟s location was in the UC Davis Medical Hospital area and defendant‟s location
was at Florin Road and Luther Drive.
Detective Higgins also checked the cell phone records of defendant and Lawrence
regarding defendant‟s story about defendant trying to buy Lawrence‟s Buick on the
Thursday before Lawrence and Washington were shot. Based on the phone records, the
two of them did not “even remotely” intersect on that day.
DISCUSSION
I
Applying California Supreme Court Precedent, The Trial Court
Did Not Violate Defendant’s Sixth Amendment Right To
Confrontation In Admitting Testimonial Hearsay By The Gang Expert
Defendant contends that the gang expert witness relied on testimonial hearsay as
the basis of his expert opinions, in violation of defendant‟s Sixth Amendment right to
confrontation. The question whether such reliance on testimonial hearsay by a gang

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expert violates a criminal defendant‟s confrontation rights is pending before the
California Supreme Court. (See People v. Sanchez (2014) 223 Cal.App.4th 1, review
granted May 14, 2014, S216681 and People v. Archuleta (Apr. 11, 2014, E049095)
[nonpub. opn.], review granted June 11, 2014, S218640.)
Defendant acknowledges People v Gardeley (1996) 14 Cal.4th 605, 618, which
held that the basis for an expert‟s opinion is not subject to the hearsay rule because it is
not admitted for the truth of any assertions, and People v. Hill (2011) 191 Cal.App.4th
1104, 1127-1131, which was critical of applying this holding in the context of the
constitutional right of confrontation but concluded it was obligated to do so under Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. He contends, however,
that the concurring and dissenting opinions in Williams v. Illinois (2012) 567 U.S. ___
[183 L.Ed.2d 89] combine to create a holding contrary to Gardeley, which this court
should follow to reverse the judgment for the admission of this prejudicial hearsay in
violation of his right to confrontation.4
However, in contending that the trial counsel‟s failure to object on the basis of the
confrontation clause did not result in a forfeiture, defendant admits the trial court was
bound to follow Gardeley, making any objection futile. He is correct, not only as to the
futility of trial counsel making such an argument, but also as to our ability to reach a
holding contrary to Gardeley. Absent an opinion of the federal high court or the
California Supreme Court to the contrary, the effect of Gardeley remains unchanged.
(People v. Whitfield (1996) 46 Cal.App.4th 947, 956-957 [federal high court‟s “clearly
decided” premise must be followed]; People v. Rooney (1985) 175 Cal.App.3d 634, 644
4 In Williams v. Illinois five of the nine United States Supreme Court justices agreed
that out-of-court statements, even when offered solely as basis evidence to support an
expert opinion, may effectively be offered for their truth. (Williams v. Illinois, supra, 132
S.Ct. at pp. 2255-2264 (conc. opn. of Thomas, J.); id. at pp. 2264-2277 (dis. opn. of
Kagan, J., joined by Scalia, J., Ginsburg, J., and Sotomayor, J.)

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[we must follow California Supreme Court if federal high court “has never squarely ruled
on the issue”].) Thus, we must continue to follow Gardeley and reject defendant‟s Sixth
Amendment contention.
II
Trial Counsel Was Not Deficient In Failing To Object To Hearsay
Evidence Regarding Defendant’s Statements To His Father About
The Shooting Relayed By The Father To The Confidential Informant
Defendant contends his trial counsel was ineffective for failing to object on
hearsay grounds to the testimony of defendant‟s father that implied defendant had
admitted to the shootings. The evidence to which defendant is referring is the testimony
of defendant‟s father that he remembered discussing the murder investigation with the
confidential informant. The father told the confidential informant that he (the father) had
asked defendant, “Why did you do it?” Defendant‟s father then told the informant that
defendant replied, “Just because.” Then the father told the informant that he recalled
asking his son, “What‟s wrong with you?”
The father‟s testimony about what he told the informant that defendant said to him
presented two levels of hearsay, and while the second level (what the father said to the
informant) was not subject to a hearsay exception, the first level (what defendant said to
his father) was subject to a hearsay exception.5
However, as we explain, counsel was not deficient in failing to object because the
damaging information would have come in one way or another. (See Strickland v.
Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693] [deficient performance is
5 The father‟s statement to the confidential informant about what defendant said was
indeed hearsay. Although defendant‟s incriminating statement to his father was
admissible as an admission of a party (Evid. Code, § 1220), the father‟s statement to the
confidential informant was hearsay because it was made out of court and admitted at trial
for its truth (Evid. Code, 1200, subd. (a)).

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the first prong of an ineffective assistance of counsel claim].) When trial counsel was
faced with the father‟s testimony about his conversation with the informant, trial counsel
could have reasonably feared that if he made a successful hearsay objection, the
prosecutor would then have asked the father directly whether the father and defendant
had ever spoken about defendant‟s involvement in the shooting. At this point, the father
could have responded in three ways, none of which would have benefited defendant.
One, consistent with testimony he gave at an earlier Evidence Code section 402 hearing,
the father could have testified he and defendant never discussed the shooting. In that
event, the father‟s contrary statements to the informant would have been admissible as
prior inconsistent statements. (Evid. Code, §§ 770, 1235.) Two, consistent with
testimony he gave at the preliminary hearing, the father could have testified that he and
defendant discussed the shooting, but defendant denied being involved. Again, however,
the father‟s contrary statements to the informant would have been admissible as prior
inconsistent statements. Or three, the father could have simply testified directly to the
same thing he told the informant (without actually discussing his conversation with the
informant) -- that he asked defendant why he did it and defendant replied, “Just because.”
Given the possibility of any of these questions and answers, trial counsel could
have reasonably decided that objecting on hearsay grounds was a no-win proposition. At
best, the evidence of the father‟s statements to the informant would have eventually been
admitted anyway as inconsistent statements. At worst, a hearsay objection by trial
counsel could have spurred direct testimony that defendant admitted committing the
crimes. Trial counsel‟s failure to object on hearsay grounds was therefore not deficient.

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III
Counsel Was Not Deficient For Failing To Object To Defendant’s Postarrest
“Silence” To His Father Because There Was Nothing Particularly
Incriminating About Defendant’s Silence Or Statements,
And The Defense Used Them To Defendant’s Advantage
Defendant contends his trial counsel was ineffective for failing to object to
defendant‟s “post-arrest silence to his father, during a conversation at the police station
which he knew was being monitored.” Specifically, he “contends that his silence was an
exercise of his Miranda rights and was, therefore, inadmissible under Doyle v. Ohio
(1976) 426 U.S. 610, 618. By failing to object when the prosecutor introduced the
videotape, defense counsel provided ineffective assistance.” 6
We disagree that trial counsel was ineffective. His failure to object was not
deficient because trial counsel had a tactical reason to use the videotape to defendant‟s
advantage in closing argument and the videotape was of such little aid to the People that
the prosecutor only briefly mentioned it in his rebuttal and not at all to show defendant‟s
guilt or adoptive admissions.
A
The At-Issue Evidence, Including Background
The background leading up to the evidence and the evidence itself to which
defendant is referring is the following:
In the early morning of October 15, 2008, police officers arrested defendant. That
morning, police read defendant his Miranda warnings and then interviewed him. Later
6 In Doyle v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91], the United States Supreme
Court held that a person‟s silence in the wake of Miranda warnings may be nothing more
than an exercise of the right to remain silent, and that using that silence to impeach a
person‟s trial testimony would be “fundamentally unfair and a deprivation of due
process . . . .” (Doyle, at p. 618 [49 L.Ed.2d at p. 98].)

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that day, detectives allowed defendant to speak with his father in an interview room
inside the police department. Just before the father-son conversation, Detective Higgins
had told the father “[a]lmost everything” at that point that implicated his son in the
homicide. The detective also told the father that police believed that defendant knew
who the other shooter was and that police wanted know. The father-son conversation
was then recorded by one of two visible cameras and played for the jury.
At the beginning of the conversation, the father asked defendant, “Hey, how‟s it
going?” Defendant responded by pointing to one of the cameras and mouthing,
“camera.”
The father then told defendant, “they said they have a thumbprint on you from the
car, so you got the car. You were looking at the car on Thursday. The victim is denying
that. They said they got your, you know, the cell phone tower communicating Florin and
Luther at 4:12 in the morning.” Defendant asked, “The morning?” and the father
responded, “Yeah. Florin and Luther at 4:12 in the morning. They got his cell phone.”
Defendant responded, “Mm-hmm.”
The father then said, “Um, I guess when I went looking for you last night and I
guess we told em that, um, you text somebody Aliyah [defendant‟s girlfriend] or
something like that to bring some weed or some shit and I‟m like well I don‟t [know]
where the fuck that‟s coming from.”7 Defendant responded, “I told em I was waiting for
my dad. I told Aliyah I‟m waitin for my dad.”
The father then said, “they are trying to say that you were involved and stuff like
that but they know that you‟re not the shooter and stuff like that. I -- I‟m like, man,
7 When conversing with the father right before the father spoke to defendant in the
interview room, Detective Higgins told the father “there was a text message as well as a
statement by [defendant] about [the father] bringing him some weed the night before”
and that “it didn‟t look good for him [the father]. That was a problem for him because of
his job.”

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what‟s in your hair?” Defendant responded, “I can‟t touch it.” “So that‟s sore. Where
they gonna move me to now?” The father told him juvenile hall and told defendant,
“[t]hey just -- they wanna know who the shooter was.” Defendant‟s response was
transcribed as “[u]nintelligible.”
The father said, “And a murder investigation so there‟ll be, um, an investigation
and they see a lot of holes in your story. They‟re looking for the video. He -- did you go
to Carl‟s Jr[.] after you looked at the vehicle?” Defendant‟s response was transcribed as
“[u]nintelligible.”
The father said “they” were tapping his phone. Defendant responded, “And they
said my phone was where?” The father told him again, “Florin and Luther at four
o‟clock in the morning” and then said, “[h]e‟s always pretty upfront with me and
straight.” Defendant asked, “Who him?” The father did not say, but repeated “[h]e‟s
pretty straight with me” and that “they were saying that you were on the driver‟s side . . .
but they‟re thinking that whoever was shot was doing some other kinda of dirt, you
know, before that happened or whatever.” Defendant asked, “Why?” The father said,
“Because (unintelligible) shot them and shot Wes, you know, so I don‟t know.”
Defendant‟s response was transcribed as “[u]nintelligible.”
B
The Law And Its Application Here
In Doyle v. Ohio, supra, 426 U.S. at p. 610 [49 L.Ed.2d 91], the United States
Supreme Court held that a person‟s silence in the wake of Miranda warnings may be
nothing more than an exercise of the right to remain silent, and that using that silence to
impeach a person‟s trial testimony would be “fundamentally unfair and a deprivation of
due process . . . .” (Doyle, at p. 618 [49 L.Ed.2d at p. 98].) However, the California
Supreme Court has held that “ „[i]f a person is accused of having committed a crime,
under circumstances which fairly afford him an opportunity to hear, understand, and to
reply, and which do not lend themselves to an inference that he was relying on the right

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of silence guaranteed by the Fifth Amendment to the United States Constitution, and he
fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement
and the fact of silence or equivocation may be offered as an implied or adoptive
admission of guilt.‟ ” (People v. Jennings (2010) 50 Cal.4th 616, 661.) “ „[A] typical
example of an adoptive admission is the accusatory statement to a criminal defendant
made by a person other than a police officer, and defendant‟s conduct of silence, or his
words or equivocal and evasive replies in response. With knowledge of the accusation,
the defendant‟s conduct of silence or his words in the nature of evasive or equivocal
replies lead reasonably to the inference that he believes the accusatory statement to be
true.‟ ” (People v. Silva (1988) 45 Cal.3d 604, 623-624.)
The California Supreme Court has also held a defendant‟s silence may not be used
as an adoptive admission if the defendant has been given Miranda warnings, “suspect[s]
the monitoring of his conversation,” and intends his silence as an invocation of his
constitutional right to remain silent. (People v. Medina (1990) 51 Cal.3d 870, 890-891.)
Given these holdings by the California Supreme Court, the People were wrong to
seek to use defendant‟s silence or evasive answers when his father told him he was
suspected of being involved in the shooting as evidence of defendant‟s guilt. But even
though an objection to its use by the defense would have been well taken, counsel‟s
performance was not deficient for failing to raise the issue because counsel had a tactical
reason for allowing the People to introduce the videotape, which was made clear in
closing arguments.
Preliminarily, we note that the prosecutor never mentioned this videotape in
closing argument, which tends to indicate it was an unimportant piece of evidence for the
People. However, when it came time for defense counsel‟s closing argument, counsel
urged the jurors to watch all the video clips and use them “as tools to evaluate whether
you believe somebody.” “Look at him and how he‟s talking. Look at [him] and the way
he‟s holding himself, carrying himself. He‟s not this hard-core gangster that [the

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prosecutor] is portraying him to be . . . . [¶] And use those. Watch them, because those
help you fill in the pieces. Those give you a full, better understanding of who [he] is and
the kind of person he is.” He also used the substantive content of the videotape to argue,
“from a common-sense perspective,” if the “D.A.‟s argument is [correct] that [defendant]
is making this up,” why “[w]hen this interview happened, when the interview happened
when they brought his dad into the room,” “why would [defendant] associate himself
with two individuals who were just shot? He would distance himself, as opposed to
bringing them together, and that‟s not what he did.”
Despite defendant‟s counsel‟s use of the videotape, the prosecutor still did not
argue the videotape contained adoptive admissions. The only thing the prosecutor argued
in his rebuttal argument as to the videotape was that it actually showed a father who was
trying to protect his son and give his son all the information that the father had.
In summary, then, given the beneficial use to which defendant‟s counsel put the
videotape (i.e., using the videotape to show defendant did not appear to be a “hard-core
gangster” and that defendant had not contrived a story because if he was doing that, he
would have made efforts to distance himself from the two victims mentioned during the
videotaped conversation), his counsel had a tactical reason for not objecting to the
videotape‟s introduction.
IV
Defendant’s Contention Regarding Prosecutorial Misconduct In Closing Argument Is
Forfeited; Defendant’s Trial Counsel Was Not Deficient For Failing To Object
Defendant contends the judgment must be reversed because the prosecutor
committed misconduct in closing argument. Defendant has forfeited his contention by
failing to object to the argument in the trial court. His backup ineffective assistance of
counsel argument fares no better, as his counsel was not deficient for failing to object to
an argument that was not misconduct.

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A
The Prosecutor’s At-Issue Argument
During his rebuttal closing argument, the prosecutor stated as follows:
“The presumption of innocence is now lifted. Okay. Yes, you’re supposed to
presume him innocent until you’re at this juncture. Now the evidence is in. Now you can
decide what the evidence is. He’s no longer presumed innocent if you start finding that
the evidence is pointing to him.
“Your job as jurors is to find him guilty beyond a reasonable doubt. Reasonable
doubt asks you to compare all of the evidence, all of it, and then make your decisions.
“[Y]ou have the benefit of all of this evidence, all of it, and you need to put your
minds together, put it together, and decide what it means. That‟s your job. You‟re in a
much better position than I am, than [defense counsel] is, than the police officers are,
than anyone else in this case because you have a box. In that box goes all the facts of this
case and the law, and you are now going to sort out what happened, what is the truth,
what is the truth about what happened . . . .
“What really happened? You have the facts. You decide what they mean, you
apply the law, and you find him guilty, if it‟s there. You are not advocates. You are
smart beings who have experiences in life that qualify you to sit as jurors and use logic
and reason and decide what happened in this case.
“That‟s your job. I recognize it‟s intimidating, but it‟s important. I ask that you
take this task very seriously and you apply it, you apply yourselves with logic, logic and
common sense. This is a decision that‟s based in reason. It‟s reasonable doubt. Okay.”
(Italics added.)
B
Defendant Has Forfeited His Contention That The Prosecutor Committed Misconduct
Defendant contends the prosecutor committed misconduct and violated his
Fourteenth Amendment right to due process by misstating the law and reducing the

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People‟s burden of proving each element of the offenses beyond a reasonable doubt. To
preserve a claim of prosecutorial misconduct, trial counsel must make a timely objection
on the same ground and request that the jury be admonished to disregard the impropriety.
(People v. Thornton (2007) 41 Cal.4th 391, 454.) Trial counsel made no objection here,
so this contention is forfeited.
C
Counsel Was Not Deficient In Failing To Object
Defendant contends that if he forfeited his misconduct argument, his counsel was
ineffective for not objecting. Defendant‟s trial counsel was not deficient, because the
prosecutor‟s argument was not misconduct. (See Strickland v. Washington (1984) 466
U.S. 668, 687 [80 L.Ed.2d 674, 693] [first prong of an ineffective assistance claim is
deficient performance].)
“When a prosecutor‟s intemperate behavior is sufficiently egregious that it infects
the trial with such a degree of unfairness as to render the subsequent conviction a denial
of due process, the federal Constitution is violated. Prosecutorial misconduct that falls
short of rendering the trial fundamentally unfair may still constitute misconduct under
state law if it involves the use of deceptive or reprehensible methods to persuade the trial
court or the jury.” (People v. Panah (2005) 35 Cal.4th 395, 462.) In Panah, the
“[d]efendant contend[ed] that the prosecutor improperly appealed to the prejudices and
passions of the jury, and denigrated the presumption of innocence, when he argued that
the prosecution‟s evidence had „stripped away‟ defendant‟s presumption of innocence.”
(Id. at p. 463) Our Supreme Court “disagree[d]. „[T]he prosecutor has a wide-ranging
right to discuss the case in closing argument. He has the right to fully state his views as
to what the evidence shows and to urge whatever conclusions he deems proper.‟
[Citation.] Here, the prosecutor‟s references to the presumption of innocence were made
in connection with his general point that, in his view, the evidence, to which he had just

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referred at length, proved defendant‟s guilt beyond a reasonable doubt, i.e., the evidence
overcame the presumption.” (Ibid.)
The same is true here. In the prosecutor‟s closing argument, he began by
explaining in detail all the evidence in the case and how it pointed to defendant‟s guilt,
stressing defendant‟s fingerprint on Lawrence‟s car was “the biggest piece of evidence in
this case” and that the phone records were “very powerful” evidence “illustrati[ng] . . .
the scheming of this murder.” In the rebuttal argument, the prosecutor made the limited,
confined statement about “[t]he presumption of innocence [being lifted].” He reminded
the jurors that “now that the evidence was in, the evidence has proven defendant guilty
beyond a reasonable doubt.” This was within the range of argument allowed.
V
There Was No Cumulative Prejudice
Defendant contends the cumulative nature of the errors and/or defense counsel‟s
deficiencies were such that when aggregated together, they prejudiced him. As we have
rejected each of defendant‟s previous contentions, there are no errors to accumulate.

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DISPOSITION
The judgment is affirmed.
ROBIE , J.
We concur:
RAYE , P. J.
DUARTE , J.

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