Filed 10/16/13 P. v. Hoagland CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D062138
Plaintiff and Respondent,
v. (Super. Ct. No. SCE305010DV)
LAWRENCE HOAGLAND,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Herbert J.
Exarhos, Judge. Affirmed.
Lizabeth Weis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Eric A.
Swenson, Deputy Attorneys General, for Plaintiff and Respondent. Lawrence Hoagland appeals from a judgment convicting him of attempted
premeditated murder and other offenses based on evidence showing that he tried to kill
his wife by planting a pipe bomb that exploded in her car. He argues the judgment must
be reversed because (1) the jury's finding that he was the perpetrator was based on
speculation, and (2) his counsel provided ineffective representation by failing to object to
closing arguments by the prosecutor that misstated the beyond-a-reasonable-doubt
standard. We reject his contentions of reversible error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Around 4:30 p.m. on September 23, 2010, Connie Hoagland (Connie) was
severely injured when a pipe bomb inside her truck exploded as she turned on the
ignition. Several days after the explosion, defendant was arrested. At trial, the
prosecution's witnesses included Connie; a woman living in Pennsylvania with whom
defendant was having an affair (Lee Ann Rupert); defendant's business partner (James
Coit); and several other witnesses who had information relevant to the investigation of
the offense.
At the time of the crime, defendant and Connie had been married for 25 years.
They were living in the family home with their two adult daughters, their high-school-age
son, and their three-year-old grandson. In the months before the crime, defendant and
Connie were experiencing serious financial problems, and in early 2010 they filed for
2 bankruptcy.1 During this time period, their relationship was "distant." Connie suspected
defendant was having an affair, but when she confronted him about this he assured her
that he was committed to their relationship.2
On the morning of September 8, 2010 (about two weeks before the explosion),
Connie drove defendant to the airport for a flight to Pennsylvania for a purported
business trip. That evening, as she was driving home in her truck from an errand, she had
to take a detour because the street she had driven on en route to her errand was blocked
off, and there were numerous police and fire personnel there. The police had evacuated
the area after several individuals observed a pipe bomb in the street. The bomb consisted
of a pipe affixed to a piece of cardboard in a Federal Express envelope with a cell phone
attached. Before the police arrived, bystanders on the street saw cars drive over the
bomb. When the police viewed the bomb, the envelope was "roughed up," and an
alligator clip apparently used in the bomb was lying in the street. The police rendered the
bomb safe with a robot, and determined the bomb was designed to explode when a person
called the cell phone attached to the bomb. There were pieces of duct tape with loose
1 Connie and defendant had about $75,000 in credit card debt, a student loan, a business loan, hospital bills, and an "upside down" mortgage (i.e., their mortgage debt was about $100,000 higher than the value of their house). Defendant's business partner Coit testified their business was not doing well in 2010, and after the pipe bomb explosion Coit learned the business owed about $40,000 in back rent.
2 Connie testified that defendant was working late and not arriving home in time for their family dinner; he was using his phone a lot in a secretive manner; and he was frequently traveling on what he claimed were business trips to Pennsylvania. Defendant did not appear to care about saving the house, although he "went along" with Connie's efforts to try to structure the bankruptcy so they could keep the house. Defendant was acting "very short" and would at times get "really mad" at family members. 3 ends on the bomb. After the subsequent September 23 bomb explosion in Connie's truck,
the authorities examined the exterior underside of her truck and found what appeared to
be a duct tape residue mark in the area of the driver's side floorboard.
A few days before the September 23 explosion, Connie noticed a black wire
hanging down underneath the steering column of her truck. She meant to tell defendant
about this, but the wire was later gone and she forgot about it. On the morning of the
explosion, Connie again noticed a wire hanging from the steering column when she got in
the truck with her son, and she asked her son to remind her to tell defendant about it.
When she arrived at work that morning, she locked the truck with the remote "chirper"
device. At the end of her work day shortly after 4:00 p.m., defendant called her and said
he would be home at 5:30 p.m. Connie perceived this call as odd because she usually had
to call him to ask if she should eat dinner without him.
When Connie went out to her truck, she pressed the remote device to unlock it.
She noticed the truck appeared to be unlocked already because the remote device did not
make the sound it typically makes at unlocking. Connie was the primary driver of the
truck, but defendant had access to an extra truck key and he occasionally drove the
truck.3 When Connie started the ignition, the pipe bomb attached inside her vehicle
exploded. Connie felt "excruciating pain" in her feet and legs. A bystander helped her
out of the truck and called 911.
3 In addition to Connie's key, there was an extra key in a drawer at the house. The truck could also be opened by punching in a code (known only to the immediate family) on a keypad by the driver's side door. 4 Based on their forensic investigation, the authorities concluded that someone built
a pipe bomb and wired the truck for the bomb, at some point placed the bomb in the
driver's side dashboard area of the truck, and on the day of the explosion connected the
wire to a fuse. When Connie turned on the vehicle's ignition, the circuit was complete
and the bomb exploded.
As a result of the explosion, Connie incurred extensive injuries to her feet and
lower legs, including serious lacerations, tissue avulsions, and exposed bones. She
underwent numerous surgeries and was unable to walk for a substantial period of time.
At the time of trial about one and one-half years later, she had extensive scarring; a rod in
her foot and one in her tibia; permanent nerve damage to her foot; and toes that did not
bend. Also, her hearing was affected and she tired easily.
Based on a variety of evidentiary items acquired during their investigation, the
authorities concluded that defendant was responsible for the September 8 pipe bomb
found in his neighborhood and the September 23 pipe bomb that exploded in his wife's
truck. An AT&T cell phone attached to the September 8 bomb (the "bomb phone")
showed that on September 7 between 8:36 and 9:44 p.m. there were 18 incoming missed
calls from a Verizon cell phone (the "calling phone"). Both the bomb phone and the
calling phone were prepaid phones for which there was no subscriber record. The calling
phone was activated on September 5 and the bomb phone was activated on September 6.
In defendant's wallet, the police found a paper from AT&T setting forth the phone
number for the bomb phone, and a paper from Verizon setting forth the phone number for
5 the calling phone.4 The September 7 phone calls from the calling phone to the bomb
phone were transmitted via Verizon and AT& T cell phone towers located about two to
five blocks from defendant's place of business.5 Also, at about 9:00 p.m. on September
7, defendant made a call from his personal AT&T cell phone, and the call was
transmitted from the same AT&T cell phone tower near his work.
Defendant and his business partner Coit owned a commercial photography
business and were the only persons who worked at their studio. Coit was concerned that
defendant might have been involved in the September 23 explosion.6 Coit looked at the
browser history on their business computer and discovered that on the morning of
September 3 there were 22 searches for YouTube videos related to building pipe bombs,
including a cell phone activated bomb. Coit and defendant were the only persons who
used this computer. Coit contacted the authorities, and shortly thereafter defendant was
arrested. When the authorities examined defendant's home computer, they found a
4 In addition to the phone numbers associated with the phones, the papers from AT&T and Verizon contained additional information pertinent to the phones. The AT&T paper stated " 'activate your go phone directly from handset' " and provided an activation code. The Verizon paper was labeled " 'wallet card' " for a "prepaid wireless phone by Verizon," and contained a space for an account security code and voicemail password (with the handwritten code "1987").
5 Defendant's place of business and his residence with Connie were located in different parts of town.
6 Coit suspected that defendant might be having an affair with someone in Pennsylvania because defendant made numerous trips there; defendant started having long, private cell phone conversations while at work; and Coit saw on the business's computer an e-mail indicating that defendant was looking for work in Pennsylvania and an e-mail with a picture of Rupert and her children at the beach. 6 backup for his iPad showing searches on the night of September 3 entitled " 'cell phone
detonator' " and " 'make mobile phone bomb.' "
The pipe bomb that exploded in Connie's truck included alligator clips among its
components. The authorities contacted numerous stores in San Diego County to
determine whether they carried the type of alligator clips found among the exploded
bomb debris, and the only store that sold them was Fry's Electronics. Defendant's bank
records showed that on September 21 (two days before the pipe bomb explosion), he
purchased several items with his debit card at Fry's Electronics. Fry's Electronics records
showed that about one minute before defendant's debit card purchase, a person paid cash
for alligator clips from the same cashier at the same cash register.
Called to testify on behalf of the prosecution, Rupert (who had been defendant's
high school girlfriend) acknowledged that she had been having an affair with defendant
since 2007. In about 2009, defendant told Rupert that he was going to leave his wife, file
for divorce, and move to Pennsylvania. However, he kept delaying implementation of
these plans and making excuses, and Rupert began questioning him about his
commitment to her and gave him numerous ultimatums. Defendant kept promising
Rupert that he loved her and wanted a life with her, and at one point he told her (falsely)
that he had moved out of the family home and served his wife with divorce papers. They
made plans for him to move to Pennsylvania in October 2010.
However, in the summer of 2010 there was "a lot of stress" in their relationship.
In a series of text messages, Rupert told defendant another man was interested in her; she
was tired of his whining, insecurities, and excuses; he needed a divorce and a job in
7 Pennsylvania before making the move to Pennsylvania; and the reality of the situation
was that he really could not afford to divorce his wife. At one point she told him they
should go their "separate ways."
Whenever Rupert questioned defendant's commitment or tried to end their
relationship, defendant continued to pursue her. He sent text messages saying he was
completely and totally consumed with making their relationship happen; he wanted more
than anything to be her husband; she was worth anything and everything and he just
wanted "it to all go away"; he did not have a future without her; he did not have much of
a home life and everyone hated him; it was almost over and he would not leave her
hanging forever; and he could never go back to his wife and did not love his wife at all.
Rupert decided to give defendant another chance.
When defendant was with Rupert in Pennsylvania from September 8 to 17, he had
a job interview. After the job interview, defendant and Rupert had a "huge argument"
because she felt he was not being straightforward with her about whether he got the job.
Rupert suggested they should " 'just take a break' " in their relationship. When defendant
returned to California, he continued to send Rupert text messages. On September 21, he
texted " 'Going to go to Fry's. Love you, miss you." On September 22, he wrote " 'My
life and our life is almost how I want it. Now things are moving faster and picking up
speed. . . . [¶] . . . [¶] . . . The start of the life I have wanted and needed and waited for is
very real.' "
Starting at 6:15 a.m. on September 23 (the day of the explosion), defendant texted
Rupert 25 to 30 times, telling her that he loved her. After the explosion in Connie's truck
8 on that date, he sent Rupert a series of text messages about the incident, and Rupert
eventually texted him, " 'Don't worry about us. You need to take care of your family.' "
On September 25 and 26, he sent her texts telling her that he loved her and wanted to be
in Pennsylvania. Rupert, however, texted him that they should "take a break." Defendant
responded that he did not like that idea but he understood; he was very confident in their
love and "life forever"; and she may get a call from detectives.
Defendant and Connie had a life insurance policy that would pay $300,000 to the
surviving spouse upon the death of the other spouse. Shortly after his arrest, defendant
spoke to Connie on the phone. He told her that he wanted her to know he was having an
affair " 'before it gets out' "; however, he had " 'been dedicated to [her] since Thursday' "
(the day of the explosion); and he " 'didn't do it.' "
Defense
Testifying on his own behalf, defendant denied that he was the person who
accessed the bomb-making websites on his and Coit's business computer on the morning
of September 3; denied that he called the cell phone numbers on the papers in his wallet;
and denied that he had anything to do with the pipe bombs. He claimed the cell phone
numbers were given to him by a transient named Jerry who, with defendant's permission,
had parked his motor home behind the photography studio in exchange for guarding the
studio at night. When defendant spoke with Jerry and asked him to "watch out for the
place," Jerry gave defendant the two cell phone numbers, one belonging to Jerry and the
other to Jerry's wife. Defendant admitted that on September 21 he purchased alligator
clips from Fry's Electronics using cash. He claimed he was going to use the clips to
9 construct a static electricity ground while installing memory on a work computer, and he
used cash with the plan to reimburse himself from his business's petty cash fund.
Defendant also admitted that on the night of September 3 he did Internet searches on his
home iPad related to making bombs. He claimed he did this after watching a television
show called " 'Burn Notice' " because he wanted to look up if something on the show was
actually feasible.
Jury Verdict and Sentence
For the September 8 bomb incident, the jury convicted defendant of possession or
attempting to explode a destructive device with intent to injure. For the September 23
bomb explosion, the jury convicted him of premeditated attempted murder, exploding a
destructive device with intent to murder, and exploding a destructive device that causes
mayhem or great bodily injury. The jury also found true several enhancement allegations
of personal infliction of great bodily injury under circumstances involving domestic
violence and personal use of a deadly or dangerous weapon. The court sentenced
defendant to an indeterminate life term with the possibility of parole, plus a 13-year
determinate term.
DISCUSSION
I. Sufficiency of the Evidence
Challenging the sufficiency of the evidence, defendant argues the jury's conclusion
that he was responsible for the pipe bombs was based on speculation. He posits that
although the evidence could raise a suspicion of his guilt, it did not show his guilt beyond
a reasonable doubt.
10 In reviewing a challenge to the sufficiency of the evidence, we examine the entire
record in the light most favorable to the judgment to determine whether there is
substantial evidence from which a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. (People v. Nelson (2011) 51 Cal.4th 198, 210.) The same
standard applies when the prosecution relies primarily on circumstantial evidence. (Ibid.)
We presume in support of the judgment the existence of every fact the jury could
reasonably deduce from the evidence. (Ibid.) If the circumstances reasonably justify the
jury's findings, reversal is not warranted merely because the circumstances might also be
reasonably reconciled with a contrary finding. (Ibid.) It is the exclusive province of the
jury to determine credibility and to resolve evidentiary conflicts and inconsistencies.
(People v. Young (2005) 34 Cal.4th 1149, 1181.) However, the jury may not draw
inferences based on suspicion; rather, a " ' "finding of fact must be an inference drawn
from evidence rather than . . . a mere speculation as to probabilities without
evidence . . . ." ' " (People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1416-1417,
citations omitted.)
The jury could reasonably conclude that the evidence showed beyond a reasonable
doubt that defendant was the person responsible for the pipe bombs. The evidence
showed that on September 3 defendant's business computer and his personal iPad were
used to conduct numerous Internet searches related to bomb making and denotation.
Defendant's wallet contained the phone numbers for both the calling phone and the bomb
phone that were associated with the September 8 bomb found in the street in defendant's
neighborhood. There were repeated calls from the calling phone to the bomb phone on
11 the evening of September 7 from an area of town located near defendant's business.
Defendant used his personal phone to make a call from this same area during the same
one-hour period as the calls from the calling phone. Defendant left for Pennsylvania the
following morning (September 8), and the pipe bomb was found that night on a street that
shortly before had been traversed by the victim when driving in her neighborhood en
route to an errand. On September 21, defendant went to Fry's Electronics and used cash
to purchase alligator clips. Alligator clips of the same type and sold locally only by Fry's
Electronics were found in the debris of the September 23 bomb that exploded in Connie's
truck.
As to motive, the record shows defendant was trying to arrange his financial and
personal affairs so he could leave his wife and move to Pennsylvania to be with Rupert.
Rupert was pressuring him to complete this process; at one point she questioned whether
he could financially afford to make the change; and she had suggested they end their
relationship. Defendant insisted to Rupert he could arrange his affairs in California and
move to Pennsylvania, and he had at his disposal a $300,000 life insurance policy
payable to him if his wife died.
From this evidence, the jury could reasonably deduce that defendant was desperate
for money and freedom from his marriage so he could be with Rupert; he was afraid of
losing Rupert because of the repeated delays in his efforts to extricate himself from his
family obligations; and in September 2010 he devised a plan to kill his wife, collect the
insurance money, and achieve his goal of moving to Pennsylvania. The evidence tying
defendant to the two bombs was strong. Numerous Internet searches on bomb making
12 were found on his computers. Of particularly compelling significance, he was found in
possession of the cell phone numbers uniquely associated with the September 8 bomb.
The calls associated with these cell phones were made the night before defendant left
town to visit his girlfriend, from a location near defendant's place of business, and close
in time and location to a call made from defendant's personal cell phone. The jury could
reasonably deduce that defendant attached the September 8 bomb to the underside of his
wife's truck, arranged to detonate it with the cell phones, and then left town with the
intent of having an alibi upon its explosion. Further, after defendant failed in his efforts
with respect to the September 8 bomb, he continued with his plan by planting the
September 23 bomb. Buttressing this conclusion, two days before the September 23
bomb exploded, defendant made a cash purchase of a component used in this second
bomb.
In his briefing on appeal, defendant cites testimony from prosecution witnesses
showing that a resident of the neighborhood where the explosion occurred gave the
authorities a home surveillance video depicting a man who was carrying a bag and
walking down the street about one-half hour before the explosion. When Connie, two of
defendant's children, and defendant's business partner Coit were shown the video, they
13 thought the man had characteristics that made him look similar to defendant.7 The
authorities later assessed that the man was not defendant.8 This evidentiary item does
not defeat the support for the jury's verdict. The fact that a man other than defendant was
walking in the area carrying a bag shortly before the explosion did not, standing alone,
require the jury to conclude defendant's guilt was not proven beyond a reasonable doubt.
As set forth above, there was compelling evidence tying defendant to the bombs.
There is substantial evidence to support the jury's finding that defendant was the
person responsible for the pipe bombs.
7 According to the witness testimony, the video of the man (which was shown to the jury) was "a couple of seconds" long and "kind of grainy." An investigating detective testified that the identifications of the man in the video were not based on his facial features, because the man's face was not clearly visible in the video. Connie was shown the video six days after the explosion while she was in the hospital. She told the authorities the video depicted "the back of [defendant]." At trial, Connie testified that she viewed the video when she was "in the hospital with drugs and just kind of out of it a little bit." The man in the video "had a bag" that he was "shoving over his shoulder" which "looked like [something defendant] had done a lot of times with his camera bag." Because the video depicted a man who had defendant's mannerisms, she told the detective she was "100 percent sure." One of defendant's daughters said the man had "the same walking mannerisms" as defendant; i.e., "kind of slouched over." Another daughter said the man was wearing black boots like defendant wears. Coit thought the man had the same distinctive walk as defendant. Defendant's son did not think the man looked similar to his father, and he thought the person "looked more like a high school ball player."
8 Defendant was ruled out as being the man in the video based on information acquired from cell phone records. 14 II. Prosecutor's Closing Argument Reference to Puzzle To Describe Burden of Proof
Defendant argues he was not provided effective representation because his counsel
failed to object to closing argument statements by the prosecutor that diluted the
prosecution's duty to prove guilt beyond a reasonable doubt.
During rebuttal closing arguments, the prosecutor said:
"I don't want to oversimplify the burden of proof. It's a high burden. And it's a high burden for obvious reasons. We're all aware of them. But at the same time, I would like to use an analogy of what a trial is. Imagine— I don't know how many witnesses, 30 witnesses, come in, swear to tell the truth, sit down, start answering questions for both the prosecution and the defense. Each question and answer is a piece of the puzzle. They're handing you pieces of the puzzle.
"Your job at that point is to collect those pieces of the puzzle and when you get back to the deliberation room, you're going to sit down and you're going to talk about all these pieces of the puzzle and you're going to figure out which pieces fit in the puzzle and which ones do not. If you think a piece fits, you keep it on the table. If you think a piece doesn't fit, you get rid of it. When you have the pieces that do fit, you put them together.
"You weren't witnesses to this. No one has every answer to every question. However, if when you finish putting together the pieces that you can and you all collectively stand back and you look at the work we've done, you can see it. If you can see even with pieces missing a picture of what happened and equally what didn't happen, you're there." (Italics added.)
Defendant asserts the prosecutor's puzzle analogy improperly suggested that the
verdict could be based on speculation because it "allowed the jury to look at pieces of a
puzzle and speculate about the missing pieces to imagine the completed picture."
It is improper for the prosecutor to misstate the law, and particularly to misstate
the prosecution's burden of proof, in closing arguments to the jury. (People v.
Katzenberger (2009) 178 Cal.App.4th 1260, 1266.) The test for evaluating the propriety
of the prosecutor's statements to the jury is whether there is a reasonable likelihood the
15 jury construed the statements in an objectionable manner. (People v. Pierce (2009) 172
Cal.App.4th 567, 572.) When defense counsel fails to object to a prosecutor's
misstatements and a timely admonition from the court would have cured the harm, the
issue is forfeited on appeal. (People v. Mesa (2006) 144 Cal.App.4th 1000, 1006-1007.)
However, the claim may be considered under an ineffective representation theory. (Id. at
p. 1007.) To show ineffective representation, the defendant must establish that counsel's
performance fell below an objective standard of reasonableness, and there is a reasonable
probability that absent counsel's deficiency the result would have been different. (Ibid.)
If the record does not show prejudice from counsel's alleged deficiency, we may reject
the claim without determining whether counsel's performance was deficient. (Id. at p.
1008.)
The crux of the beyond-a-reasonable-doubt standard is that the jury must have
" 'an abiding conviction' " that the defendant is guilty. (Pen. Code, § 10969; People v.
Pierce, supra, 172 Cal.App.4th at p. 573.) An abiding conviction has been described as
one that is settled and fixed, or lasting and permanent. (Pierce, supra, at p. 573.)
However, the jury need not eliminate every iota of doubt (even if unreasonable), because
given the limits on human knowledge, there can always be some possible or imaginary
doubt. (Pen. Code, § 1096; Victor v. Nebraska (1994) 511 U.S. 1, 17.)
9 Penal Code section 1096 defines reasonable doubt as follows: " 'It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.' " 16 Apart from the standard reasonable doubt definitions, reviewing courts have
repeatedly cautioned trial courts and prosecutors to refrain from " 'elaborat[ing] on the
meaning of reasonable doubt because the term is not susceptible of precise definition and
explanations often are confusing to the jury.' [Citation.]" (State v. O'Brien (R.I. 2001)
774 A.2d 89, 110; People v. Medina (1995) 11 Cal.4th 694, 745.) For example, it is
improper for a prosecutor to suggest that reasonable doubt can be quantified. (People v.
Katzenberger, supra, 178 Cal.App.4th at p. 1267; see People v. Otero (2012) 210
Cal.App.4th 865, 872.) Analogies by the prosecutor (including references to puzzles),
that could be construed as suggesting a quantitative (rather than qualitative) measure for
reasonable doubt, are perilous and should be avoided. (Katzenberger, supra, 178
Cal.App.4th at pp. 1267-1269; State v. O'Brien, supra, 774 A.2d at p. 110.) Further, it is
impermissible for the prosecutor to invite the jury to base a verdict on speculation rather
than on reasonable inferences drawn from the evidence. (People v. Yeoman (2003) 31
Cal.4th 93, 149.)
We need not decide whether the prosecutor's puzzle analogy in this case fell
outside the bounds of permissible argument, and whether reasonably competent defense
counsel would have objected to the argument, because there was no prejudice. This is
not a case where the prosecutor's puzzle analogy suggested that a certain quantity of
evidence sufficed to establish guilt. (See, e.g., People v. Katzenberger, supra, 178
Cal.App.4th at pp. 1267-1268 [prosecutor's statement that Statue of Liberty puzzle with
two missing pieces met the beyond-a-reasonable-doubt standard "inappropriately
suggest[ed] a specific quantitative measure of reasonable doubt; i.e., 75 percent"].)
17 Further, the prosecutor did not overtly state that the jury should speculate about the
contents of the missing pieces of the puzzle. To the contrary, the jury could have
reasonably construed the prosecutor's statement that the jury must be able to see "what
happened" "even with pieces missing" as meaning the evidence must be sufficient to
prove guilt based solely on the pieces (i.e., evidence) presented. Further, to the extent the
jury might have thought the prosecutor meant it could draw reasonable, nonspeculative
inferences from the existing pieces (i.e., from the evidence presented) to fill in the
missing pieces, this was not improper.
To the extent the argument might have been erroneous, any error was overridden
by other correct statements to the jury concerning the beyond-a-reasonable-doubt
standard. The trial court instructed the jurors that "[p]roof beyond a reasonable doubt is
proof that leaves you with an abiding conviction that the charge is true" and that the
jurors must "impartially compare and consider all the evidence that was received
throughout the entire trial." (Italics added.)10 The court also instructed the jurors that
they must "decide what happened, based only on the evidence that has been presented to
you in this trial." (Italics added; see CALCRIM No. 200.) The court further instructed
that "each fact essential" to a conclusion derived from circumstantial evidence must be
10 In the language of CALCRIM No. 220, the jury was told: "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. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty." 18 proven beyond a reasonable doubt; a verdict could not be based on circumstantial
evidence unless the jurors were "convinced that the only reasonable conclusion supported
by the circumstantial evidence is that the defendant is guilty"; and the jurors must "accept
only reasonable conclusions and reject any that are unreasonable."11 (Italics added.)
From these instructions, the jurors were expressly informed of the abiding conviction
standard, and they would have readily understood that their verdict could not be based on
speculation but had to be derived from reasonable inferences drawn from the evidence.
Also, in closing arguments the prosecutor acknowledged that the beyond-a-
reasonable-doubt standard was "a very high standard"; a "high burden"; the jury had to be
convinced "by more than by a preponderance"; and the jury could "only consider
reasonable conclusions." Defense counsel emphasized to the jury that beyond a
reasonable doubt required "an abiding conviction" that the person is guilty, and that
"probably guilty" or "really suspicious" would not suffice.
Considering the nature of the prosecutor's puzzle analogy, the instructions
provided to the jury, and the closing arguments in their totality, we are satisfied the jurors
11 This instruction stated in part: "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. [¶] . . . [¶] Therefore, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. [¶] However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable." (See CALCRIM Nos. 224, 225.) 19 properly understood the beyond-a-reasonable-doubt standard. There is no reasonable
probability defense counsel's failure to object to the puzzle analogy argument affected the
outcome; accordingly, defendant's ineffective representation claim fails.
DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.