Filed 9/3/15 P. v. Aguilera CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

LAURENCIO AGUILERA,

Defendant and Appellant.

 B256163

 (Los Angeles County

 Super. Ct. No. VA132656)

APPEAL from a judgment of the Superior Court of Los Angeles County. 

Patrick T. Meyers, Judge. Affirmed. 

G. Martin Velez, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Yun K. 

Lee, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________________
2

On March 25, 2014, a jury convicted defendant Laurencio Aguilera of possessing 

a controlled substance. (Health & Saf. Code, § 11377, subd. (a).) On April 22, 2014, in a 

bifurcated proceeding, the trial court found two strike priors pursuant to Penal Code 

section 667, subdivision (d)1and Section 1170.12, subdivision (b) to be true. The trial 

court sentenced the defendant to four years in state prison by imposing the middle term of 

two years doubled by a strike prior. 

Aguilera contends the judgment should be reversed because the prosecutor 

committed misconduct during her opening statement. We affirm. 

FACTS

On November 12, 2013, Deputy Carlos Lopez of the Los Angeles County 

Sheriff’s Department conducted a routine vehicle traffic stop for failing to signal when 

turning. The vehicle pulled over in a commercial district near a medical building. 

Deputy Lopez was joined by Deputy Robledo who came to the scene in a separate patrol 

vehicle. Both deputies got out to investigate. Deputy Lopez approached on the driver’s 

side while Deputy Robledo approached from the passenger side. At that point, Deputy 

Lopez observed Aguilera standing adjacent to the stopped vehicle about 25 feet away. 

Aguilera looked in Deputy Lopez’s direction, appeared nervous, and started to walk 

away. As he did so, Aguilera tossed an object onto the sidewalk. Deputy Lopez 

described the object as a bindle. Deputy Lopez recovered the bindle. He found within a 

plastic baggie containing a crystal-like substance. The substance was 0.07 grams of 

crystalline solid containing methamphetamine. 

 

1 All undesignated statutory references are to the Penal Code unless otherwise 

noted.
3

DISCUSSION

I. Claim of Prosecutorial Misconduct

The prosecutor gave a short opening statement. She informed the jury as follows:

“This is going to be a straightforward case. It’s going to be short. 

It’s going to be brief and to the point. The evidence in this case will show 

that this defendant knowingly possessed a usable amount of 

methamphetamine.” 

After reciting the witnesses she intended to call and their expected testimony, the 

prosecutor concluded:

“So why are we here? That’s simple, too. He doesn’t want to take 

responsibility for his actions. However, at the end of the trial, at the close 

of evidence, I’m going to be asking you all to follow the law and deliver the 

only verdict that makes sense in this case. Guilty. Thank you.” (bold and 

italics added.) 

Defense counsel lodged an objection to the highlighted comment. At side bar, 

defense counsel claimed the prosecutor’s comment “cut[] against the grain of the 

People’s burden of proof, [his] client’s presumption of innocence and his [client’s] right 

to a trial.” Defense counsel also claimed Aguilera was “under no obligation to enter any 

kind of plea negotiation or agreement prior to that trial.” Arguing the comment was 

prosecutorial misconduct, defense counsel asked for a mistrial. 

The trial court found the prosecutor’s comment to be argumentative but denied the 

mistrial motion. The trial court gave a curative admonition to the jury as follows:

“We’ve had a sidebar conference outside the presence of the jury. 

All right. The close the People’s opening statement the question --

rhetorical question was asked, ‘So why are we here?’ it was characterized 

as simple, and then there was some remarks about the defendant taking 
4

responsibility for his actions. All of that was argument. It was not part of 

the opening statement. The jury is admonished to disregard it in its 

entirety. And, furthermore, the court is striking it from the record in this 

case except to the extent necessary to retain it for whatever purposes that 

may serve. You’re to disregard it entirely.” 

Aguilera contends the prosecutor’s comment is misconduct for the following 

reasons: (1) it referenced inadmissible evidence that Aguilera was unwilling to plead 

guilty, (2) it vouched for the prosecution’s case, and (3) it shifted the burden of proof and 

improperly commented on Aguilera’s right to remain silent. We analyze each claim in 

turn.

II. Relevant Law

Claims of prosecutorial misconduct are reviewed under both federal and state

standards. (People v. Fernandez (2013) 216 Cal.App.4th 540, 564.) Conduct by a 

prosecutor, including making of improper remarks, can so infect the trial with unfairness 

as to deprive the defendant due process of law under the federal Constitution. (People v. 

Farnam (2002) 28 Cal.4th 107, 167.) Prosecutorial conduct which does not render the 

trial fundamentally unfair is misconduct under state law if it “involves ‘ “the use of 

deceptive or reprehensible methods [in an] attempt to persuade either the court or the 

jury.” ’ ” (People v. Espinoza (1992) 3 Cal.4th 806, 820.) 

Prosecutorial misconduct claims based on the prosecutor’s statements to the jury is 

viewed from a reasonable juror’s perspective in the context of the entire statement. 

(People v. Woods (2006) 146 Cal.App.4th 106, 111 (Woods).) Misconduct by the 

prosecutor does not depend on a showing of bad faith. Instead, the focus is on the injury 

to the defendant. (People v. Bolton (1979) 23 Cal.3d 208, 213-214.)

A. Claim of Inadmissible Evidence Regarding Plea Bargaining

Aguilera contends the “prosecutor improperly used the opening statement as a 

means of bringing patently inadmissible evidence to the jury, i.e., that [Aguilera] was not 

willing to accept a plea bargain to the charged offense.” 
5

Aguilera cites Evidence Code section 1153,

2

and section 1192.43as support for his 

position that evidence of plea negotiation is inadmissible at trial. The purpose behind 

these statutes making inadmissible a defendant’s offer to plead guilty is to promote the 

public interest by encouraging the settlement of criminal cases without the necessity of a 

trial. (People v. Leonard (2007) 40 Cal.4th 1370, 1404.) 

The central concept here is this: a prosecutor cannot use in trial a statement made 

by the defendant during plea negotiations. Nothing of the sort occurred here. The 

comment at issue does not directly or indirectly infer Aguilera admitted a willingness to 

plead guilty. On the contrary, the statement infers the opposite - that Aguilera wants his 

day in court. It is true, the comment can be seen as the prosecutor’s opinion that Aguilera 

is guilty, however, viewed from a reasonable juror perspective, it is a stretch to say the 

comment violated Evidence Code section 1153 or Section 1192.4. 

If Aguilera is arguing the prosecutor’s comment generally referenced his desire 

not to plead guilty, it is difficult to see how this injured him. The negative connotation is 

not that Aguilera did not engage in plea negotiations. Rather, it is in the opinion of the 

prosecutor that Aguilera is unwilling to take responsibility when he is guilty. 

B. Claim Prosecutor Vouched for Strength of Prosecution’s Evidence 

and for Aguilera’s Guilt

A prosecutor may not express a personal opinion or belief in the guilt of the 

accused when there is substantial danger that the jury will view the comment as based on 

 

2

Evidence Code section 1153 states, “Evidence of a plea of guilty, later withdrawn, 

or of an offer to plead guilty to the crime charged or to any other crime, made by the 

defendant in a criminal action is inadmissible in any action or in any proceeding of any 

nature, including proceedings before agencies, commissions, boards, and tribunals.”

3

Section 1192.4 states, “If the defendant’s plea of guilty pursuant to section 1192.1 

or 1192.2 is not accepted by the prosecuting attorney and approved by the court, the plea 

shall be deemed withdrawn and the defendant may then enter such plea or pleas as would 

otherwise have been available. The plea so withdrawn may not be received in evidence 

in any criminal, civil, or special action or proceeding of any nature, including 

proceedings before agencies, commissions, boards, and tribunals.”
6

information other than evidence adduced at trial. (People v. Lopez (2008) 42 Cal.4th 960, 

971.) The danger to be avoided is the impression the prosecutor’s opinion is based on 

outside sources not introduced in the trial as evidence. On the other hand, not all such 

comments are improper. The comment is to be evaluated in the context in which it was 

made to determine whether there was a substantial risk that the jury would consider the 

remarks to be based on outside sources. (Id. at p. 971.)

Aguilera contends the “prosecutor personally vouched for the strength of the 

prosecution’s evidence and for [Aguilera’s] guilt.” But, the prosecutor’s comments did 

not pose any risk, let alone a substantial one, that the jury would consider the comment to 

be based on outside sources. On the contrary, the prosecutor explained the case was brief 

and to the point. She indicated Aguilera knowingly possessed methamphetamine. 

The prosecutor then briefly discussed the expected testimony of witnesses. Nothing in 

what the prosecutor stated could be viewed as based on outside sources beyond the 

evidence presented in the trial. 

It is settled that “[a] prosecutor is prohibited from vouching for the credibility of 

witnesses or otherwise bolstering the veracity of their testimony by referring to evidence 

outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of [his 

or her] office behind a witness by offering the impression that [he or she] has taken steps 

to assure a witness’s truthfulness at trial. [Citation.] However, so long as a prosecutor’s 

assurances regarding the apparent honesty or reliability of prosecution witnesses are 

based on the ‘facts of [the] record and the inferences reasonably drawn therefrom, rather 

than any purported personal knowledge or belief,’ her comments cannot be characterized 

as improper vouching. [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 971.)

While it is true a prosecutor may not generally vouch for the credibility of 

witnesses based on evidence outside of the trial or upon the prestige of the prosecutor’s 

office, the brief comment by the prosecutor, from the perspective of the reasonable juror, 

cannot possibly be interpreted as vouching for any of the prosecution’s witnesses. 

The focus of the comment is not on any witness but rather on Aguilera’s unwillingness to 

take responsibility. 
7

C. Claim the Prosecutor Shifted the Burden of Proof and Improperly 

Commented on Aguilera’s Right to Remain Silent

Aguilera contends “the prosecutor’s statement improperly shifted the burden of 

proof to [Aguilera], placing the onus on [Aguilera] to prove his innocence, either through 

his own testimony or other evidence.” 

Aguilera cites Woods, supra, 146 Cal.App.4th 106, as support for his contention. 

However, Woods is clearly distinguishable. There, the prosecutor in closing argument 

stressed the defendant had an “‘obligation’” to present evidence. (Id. at p. 113.) 

The Woods court wrote, “It is inconceivable that the jury would understand . . . [the] 

statement to mean anything other than that appellant carried a burden of proof or

production.” (Id. at p. 114.) Here, the prosecutor’s comment did not directly or 

inferentially imply that the defendant had an obligation to present evidence.

Aguilera also argues Griffin error. (Griffin v. California (1965) 380 U.S. 609

(Griffin).) Griffin forbids argument that focuses the jury’s attention directly on an 

accused’s failure to testify and urges the jury to view that failure as evidence of guilt.

(Id. at pp. 609-615.) Griffin errors are usually raised at closing argument when the 

evidentiary portion of the trial has closed, not at opening statement before the 

introduction of any evidence. The prosecutor did not violate Griffin. Rather, as stated 

before, the prosecutor provided her opinion of guilt based on the evidence she intended to 

present.

D. Prejudice and the Trial Court’s Curative Admonition

Aguilera contends the trial court’s curative admonition was ineffective for three 

reasons. First, it highlighted the prosecutor’s statement. Second, the admonition was not 

directed at the prosecutor in front of the jury. Lastly, the trial court augmented the 

admonishment4likely causing the jurors to misuse the comment. 

 

4 At the end of the admonition, the trial court stated, “And, furthermore, the court is 

striking it from the record in this case except to the extent necessary to retain for 

whatever purposes it may serve. You’re to disregard it entirely.”
8

We agree with the trial court that the comment was objectionable not because it 

was misconduct but because it was argumentative. As the respondent noted in her brief, 

“The function of an opening statement is not only to inform the jury of the expected 

evidence, but also to prepare the jurors to follow the evidence and more readily discern 

its materiality, force, and meaning. [Citation.]” (People v. Dennis (1998) 17 Cal.4th 

468, 518.) Statements in the form of an argument are appropriate only at the stage of 

closing arguments when all of the evidence has been adduced. As such, the trial court 

ruled correctly in sustaining the objection and admonishing the jury to disregard the 

argumentative statement.

As for Aguilera’s contentions, first, it is difficult, if not impossible to admonish a 

jury without informing the jury on the focus of the admonition. The manner in which the 

trial court admonished the jury did not draw undue attention on the comment. Second, 

the purpose of the admonition was to cure prejudice, if any, to the defendant, not to 

punish the prosecutor. Lastly, the excerpt Aguilera highlights was not meant for the jury. 

The trial court’s charge to the jury was clear - to disregard the comment entirely.

Jurors are presumed to follow a court’s admonitions and instructions. (Romano v. 

Oklahoma (1994) 512 U.S. 1, 13.) In the instant case, no contrary evidence exists that 

jurors did not follow the trial court’s admonition.

Aguilera asserts he was prejudiced under both the federal and state standards. 

(See Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) [Federal Constitutional 

error reversible unless harmless beyond a reasonable doubt]; People v. Watson (1956) 

46 Cal.2d 818, 836 [error in the application of state law are reversible if it is reasonably 

probable the result would have been different absent the error].)

Assuming the prosecutor committed misconduct, Aguilera was not prejudiced 

under either standard. First, the brief comment made by the prosecutor did not render the 

trial so fundamentally unfair as to trigger the Chapman standard. Second, the comment 

was not so flagrant and damaging as to cause jurors to wholly abandon their independent 

duty. This was not a case evoking high emotions. Nothing in the record suggests the 

jurors abandoned their duty to independently weigh and assess the evidence and the 
9

credibility of witnesses. Beyond admonishing the jury to disregard the comment, the trial 

court properly instructed the jury that statements of counsel are not evidence. Under 

these circumstances, Aguilera cannot show absent the error it is reasonably probable he 

would have received a more favorable result.

DISPOSITION

The judgment is affirmed. 

OHTA, J.*

We concur:

FLIER, Acting P.J.

GRIMES, J. 

 

*

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.