Filed 11/20/13 P. v. Todek CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE,
Plaintiff and Respondent,

v.
JESSE DANIEL TODEK,
Defendant and Appellant. 2d Crim. No. B245788 (Super. Ct. No. 1411264)

(Santa Barbara County)

Jesse Daniel Todek appeals the judgm ent following his conviction by jury of second degree robbery (Pen. Co de, §§ 211, 213, subd. (a)(2)). 1 Appellant waived jury on the prior prison term allegation (§ 667.5, subd. (b)), which the trial court found to be true. The court sentenced appellant to six ye ars in state prison, comprised of five years for the conviction and one year for the prior prison term enha ncement. It also ordered him to pay a $10,000 restitution fine (§ 12 02.4, subd. (b)), and imposed and stayed a $10,000 parole revocation fine (§ 1202.4 5). Appellant was granted 185 days of presentence credit. Appellant correctly asserts the pr osecutor erred by suggesting during closing argument that the defense bore the burden of proof. Any harm, however, was

1 All statutory references are to the Penal Code.2 cured by defense counsel's pr ompt objection and the trial c ourt's subseque nt admonition to the jury. We affirm.
FACTS On May 24, 2012, at approximately 11 :00 p.m., Joel Ochoa started walking home from his girlfriend's house in Lompoc. A short while later, he was approached by appellant and another man, who were carryi ng beers and staggering. Appellant said something in English, whic h Ochoa thought was a request for cigarettes. A native Spanish speaker, Ochoa knew "some" Englis h, mostly common words. Ochoa handed appellant a pack of cigarettes, which appellant struck out of his hand. Still speaking in English, appellant asked Ochoa, "Where ar e you from?" Believing he was asked if he was in a gang, Ochoa responded that he "was a paisa," meaning he wa s not affiliated with

a gang. Appellant demanded money, saying in En glish, "Where's the money, fool?" After Ochoa refused to give him money, appe llant hit him and threw him to the ground. When appellant was unable to find Ochoa's wallet, he made a motion that Ochoa interpreted as reaching for a weapon. Fearin g for his life, Ochoa handed over his wallet, which contained over $100 in cash and tw o keys. Appellant and his companion ran

away. Ochoa called the police on his cell ph one. Based on Ochoa's description, the police found appellant a few blocks away. Ochoa identified appellant as his attacker and also identified certain items in appe llant's possession, including the pack of cigarettes, keys and a $100 bill. Ochoa su ffered scrapes on his arm and leg, consistent
with the described attack. Appellant presented no evidence on his behalf.
DISCUSSION Appellant contends his conviction must be reversed because the prosecutor committed prejudicial misc onduct. We disagree. During her closing argument, appellant 's trial counsel contended appellant was guilty of theft, but not robbery. She ar gued that Ochoa was c onfused and scared by3 two intoxicated men speaking to him in Englis h, and that he voluntarily gave them his wallet when they asked only for cigarettes and a lighter. Counsel further argued that Ochoa's injuries were inconsis tent with an assault. In rebuttal, the prosecutor revi ewed the evidence supporting the prosecution's theory. He then stated: "All of her [defense counsel's] statements, all of her defenses, all her arguments are totally unreasonable and totally unsupported by the evidence. [¶] The People have a burden of proof, and that's proof beyond a reasonable doubt, and we met that burden. But if you wa nt to actually believe the garbage that she just put up in front of you, hold her to that same burden, because the evidence doesn't support --" The trial court sustained defe nse counsel's immediate objection. At appellant's request, the court admonished the ju ry: "Again, ladies a nd gentlemen, it is the People's burden to prove the elements of th e charges beyond a r easonable doubt. The
defense has no burden. It is not the defense's burden to prove the defendant is not guilty. It is the People's burden to prove the defenda nt is guilty beyond a reasonable doubt." The People concede "it is improper for the prosecutor to misstate the law generally [citation], and particularly to attemp t to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements [citation]." ( People v.
Marshall (1996) 13 Cal.4th 799, 831; People v. Weaver (2012) 53 Cal.4th 1056, 1077;

see People v. Bradford (1997) 15 Cal.4th 1229, 1340 ["A distinction clearly exists between the permissible comment that a defe ndant 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"].) Here, the prosecutor improperly advised the jury to "hold" the defense to the same burden of proof as the prosecution. Even if we assume this was prosecutorial misconduct, reversal is not required unless the defendant was pr ejudiced by the misconduct. ( People v. Fernandez (2013) 216 Cal.App.4th 540, 564.) Prejudice occu rs only if it is re asonably probable the
defendant would have obtained a more fa vorable result absent the misconduct. ( People v. Tully (2012) 54 Cal.4th 952, 1010; People v. Crew (2003) 31 Cal.4th 822, 839.)4 By promptly admonishing the jury as to the correct burden of proof, the trial court cured any harm caused by the prosecutor's error. (See People v. Friend (2009) 47 Cal.4th 1, 80 [although prosecutor's comment constituted error, trial court's admonition cured any prej udice to defendant]; People v. Olivencia (1988) 204 Cal.App.3d 1391, 1404 [court's admoniti on cured misconduct because jurors are presumed to follow court's admonitions].) Moreover, the evidence against appellant was compelling. Shortly after the attack, appellant was apprehended and identified. He was in possession of the victim's property. Thus, it is not reasonably prob able that appellant
would have obtained a more favorable result absent the error. (See People v. Tully,

supra, 54 Cal.4th at p. 1010; People v. Crew, supra, 31 Cal.4th at p. 839.) The judgment is affirmed.
NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.5 Patricia Kelly, Judge
Superior Court County of Santa Barbara

________________ ______________
Stephen K. Dunkle, under appoin tment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney Genera l, Jonathan J. Klin e, Deputy Attorney General, for Plain tiff and Respondent.