Can a prosecutor's statement to the jury concerning the substance of a telephone conversation be used as evidence in a criminal case?

Defendant was not denied a right to a fair trial by the prosecutor's statements to the jury concerning the substance of the telephone conversation. "To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner." (People v. Frye (1998) 18 Cal.4th 894, 970, overruled

Page 19

on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Defendant, however, has not made such a showing. Defendant merely concludes that the statements "prejudice[ed] the case indelibly." Also, with regard to the prosecutor's statements that K.M. was told on the telephone, "[d]on't testify against the two defendants," and "[h]ow much money will it take for you not to testify," Vazquez testified, for the limited purpose of his state of mind, that K.M. was told this. Also, with regard to these statements, the jury ultimately was instructed that such matters could only be used for the state of mind and not as to their truth.

In addition, "'remarks made in an opening statement cannot be charged as misconduct unless the evidence referred to by the prosecutor "was 'so patently inadmissible as to charge the prosecutor with knowledge that it could never be admitted.'"' [Citation.]" (People v. Dykes (2009) 46 Cal.4th 731, 762.) Prior to the prosecutor's opening statement, defendant did not request that the prosecutor be precluded from referring to the substance of the telephone conversation on hearsay grounds. And although defendant's counsel did request that the prosecutor not be permitted to refer to the substance of the telephone conversation in his opening statement, the request was made on the ground that there was no evidence that defendant was involved with the telephone conversation. The prosecutor argued, and the trial court agreed, that the evidence would be admissible because defendant's knowledge of the telephone conversation could be inferred from his proximity to K.M. during the conversation. We conclude that the prosecutor's statements of what was said to K.M. on the telephone was not patently inadmissible, nor did the prosecutor's statements constitute deceptive or reprehensible methods to persuade either the trial court or the jury.