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People v. Rizo4/24/2002
s argument that the murder would not have happened without all of the defendants being present, because Ivan and Jesus would not have fought Galvan by themselves. The point was that, under the law of aiding and abetting, one who assisted in a crime could not escape guilt merely by claiming someone else was the perpetrator. The remark was a legitimate comment addressed to the evidence and to the defense tactic of claiming the defendants other than Ivan were not guilty because they were merely present at the scene.
Finally, defendants claim it was improper for the prosecutor to assert the defense attorneys "had so much fun" cross-examining Santoyo "with their seven years of higher education" while Santoyo was a man "of little education, speaking English as a second language." Though the insinuation that defense counsel enjoyed belittling Santoyo was improper, it was not prejudicial. The thrust of the argument, that given Santoyo's lack of sophistication it was reasonable to expect a skilled attorney could successfully attack his credibility even if he were telling the truth, was not improper. "To observe that an experienced defense counsel will attempt to `twist' and `poke' at the prosecution's case does not amount to a personal attack on counsel's integrity. [Citations.]" (People v. Medina (1995) 11 Cal.4th 694, 759.)
3. Vouching for Santoyo's credibility
Defendants object to the prosecutor's statements that Santoyo was honest as improper vouching for a witness's credibility. A prosecutor is prohibited from vouching for the credibility of witnesses by referring to evidence outside the record. (People v. Frye, supra, 18 Cal.4th 894, 971.) Here, however, the prosecutor did not refer to evidence outside the record. He argued Santoyo's willingness to testify even though the prosecution incarcerated him was a sign of honesty. He also argued the fact Santoyo only implicated defendants showed he was not merely pursuing a grudge against everyone he perceived as an adversary in the fight that led to the shooting. Those were legitimate comments based on the evidence.
4. Appealing to passion
Defendants contend the prosecutor improperly appealed to the jury's passion by commenting that "you can't even flip anyone off on the roadway any more for fear of them pulling a gun out on you and shooting you." Although trying to inflame the jury's passion is improper, there is no prejudice where, as here, the comments are brief and isolated. (People v. Medina, supra, 11 Cal.4th 694, 759-760.) The prosecutor's overall point, that defendants should have known that introducing firearms into a volatile confrontation might lead to a homicide, was legitimate. In addition, the court sustained an objection to the comment. Though it denied a request to admonish the prosecutor, the jury no doubt knew they were not to consider the comment.
5. Defendants' propensity for violence
Defendants contend the prosecutor tried to show they were prone to violence by arguing, without factual support, that defendants "were keenly aware of what their confederates were capable of" and "knew one another's propensity or likelihood to use firearms." The context of the prosecutor's remarks was that defendants were "family members" and "live together." The inference that defendants would know a shooting was likely when they participated in the fight was legitimate based on their relationship and the evidence that they owned firearms and ammunition. " here is no impropriety in attempting to persuade jurors to draw inferences based on the evidence." (People v. Frye, supra, 18 Cal.4th 894, 972.)
6. Ineffective assistance of counsel
"`The choice of when
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