P. v. Baker
Filed 1/6/14 P. v. Baker CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
DOMINIQUE
BAKER,
Defendant and Appellant.
F065476
(Kings Super. Ct. No. 11CM7514)
APPEAL
from a judgment of the Superior Court of
Kings County. Steven D. Barnes,
Judge.
John Hardesty,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Kathleen A. McKenna and William K. Kim, Deputy Attorneys
General, for Plaintiff and Respondent.
-ooOoo-
Appellant/defendant
Dominique Baker, an inmate in the security
Corcoran State Prison, was convicted after a
upon a nonconfined person (Pen. Code,
allegations found true that he had two prior strike convictions (§ 667,
subds. (b)-(i); § 1170.12, subds. (a)-(d)) and two prior prison term
enhancements (§ 667.5, subd. (b)). He was sentenced to the third strike term of
25 years to life plus two years for the prior prison term enhancements.
On
appeal, defendant contends he was improperly impeached with prior convictions
identical to the charged offense; the court improperly reunified the jury trial
on both the substantive offense and the special allegations; the prosecutor
committed numerous instances of alleged misconduct; and his
On
the morning of April 23, 2011, defendant was housed in Corcoran’s SHU, and scheduled
to receive prescription medication.
Phillip Kemmpf, a nurse at the prison, was assigned the task of dispensing
the medication to defendant, and ensuring that he swallowed it. Kemmpf testified the standard procedure was
for a nurse and officer to go to the inmate’s cell and hand the
medication. If the inmate accepted the
medication and consented, then the nurse had to make sure he swallowed it.
Kemmpf testified
he previously had problems with defendant “cheeking†his medication, which
meant he placed it between his cheek and gums instead of
medication in his hand, or dropped it on the floor while pretending to ingest
it. These incidents had occurred five or
six times.
On that
particular morning, Kemmpf asked a correctional officer to move defendant from his
cell and place him in a holding cell in the rotunda area. Kemmpf testified this was a standard
procedure to administer medication to an inmate who had previously tried to
“cheek†it. The holding cell provided
better lighting conditions and an unobstructed view of the inmate to make sure
he swallowed the medication.
Corrections
Officers Phillip Holguin and Humberto German responded to Kemmpf’s
request. They went to defendant’s cell
and advised him that they were moving him to the rotunda area so the nurse
could administer his medication and make sure he took it. Defendant was not happy about being moved and
said he felt disrespected. The officers
again explained the nurse wanted him moved to another area to administer his
medication. Defendant agreed.
The officers
entered his cell and conducted an unclothed body search of him, pursuant to
operational procedures. They placed him
in handcuffs and escorted him to the rotunda area. As they walked to the rotunda, defendant
became belligerent, yelled at the officers, and used foul language. They arrived at the rotunda area and the
officers placed him in the holding cell.
Defendant remained in handcuffs in the holding cell.
Kemmpf testified
he approached defendant from outside the holding cell and asked if he wanted
his medication. Defendant became
“verbally abusive†and directed obscenities at Kemmpf and the officers. Defendant said Kemmpf had “gone too far†by
putting him through the process of moving him to the holding cell. Kemmpf tried to convince defendant to take
his medication, and defendant continued to be verbally abusive.
During this
exchange, the officers remained by the holding cell and told defendant to calm
down. Kemmpf testified the officers told
defendant they were “ ‘not going to tolerate’ †his verbal abuse. The officers told defendant: “ ‘If you want your medication just take
it; if you don’t want it we’ll take you back to housing.’ â€
After about 10
minutes, Kemmpf told defendant: “ ‘Look,
do you want it or not? I’m not going to argue with you anymore. Do you want your medication or not?’ †Defendant said he would take the
medication. Kemmpf left the holding cell
and went to the nursing office to get the medication.
Officer German testified
he reached through the food port and removed defendant’s handcuffs so he could
take the medication. Defendant grabbed
German’s right wrist through the food port, and pulled German’s hand and arm into
the cell. Defendant screamed obscenities
at him. German could not break free of
defendant’s grasp. German reached for
his pepper spray canister with his left hand and sprayed defendant’s face with one
burst. The spray went on defendant’s
face and upper torso. Defendant released
German’s wrist and retreated to the back of the cell. German testified it was fairly common for
inmates to assault officers through the food port, and officers were permitted
to use pepper spray under such circumstances.
Kemmpf was in
the nurse’s office when he heard noise from the holding cell. He did not see the assault or the
administration of pepper spray. When he
returned to the area, the two officers were still standing by the holding cell,
and Kemmpf realized they had used pepper spray on defendant. Kemmpf saw the distinctive
orange-and-red-colored pepper spray on the front of defendant’s chest and head,
and on the back wall of the holding cell.
Some of the pepper spray was on the back of defendant’s head and
shirt. Kemmpf believed defendant had
received “one good burst†of pepper spray. It was not “dripping†off him, and he had not
been “doused.â€
As a result of
defendant’s assault, German reported he had “a little red area on [his] wrist
for a couple of days†and a “little bit of pain,†but “nothing major.â€
Defendant
testified he received medication for a mood disorder. It was usually dispensed by a nurse who would
come to his cell. The nurse placed the
medication in his hand, and he swallowed it with water. Defendant testified he never “cheek[ed]†his
medication or refused to take it.
Defendant
testified that on the day of the incident, the officers removed him from his
cell and escorted him to the rotunda area.
Defendant felt he was being singled out.
He had recently been moved into that housing unit, and he wanted to stop
something before it became an everyday procedure. He told the officers this was not the correct
procedure for his medication.
Defendant
admitted he felt disrespected and upset about the procedure, and did not like
how he was being escorted to the rotunda area.
Defendant testified the officers became “loud†and “a little aggressiveâ€
when he complained. Defendant admitted
he became verbally aggressive and confrontational, but testified he never tried
to touch the officers.
Defendant
testified his handcuffs were released when he was placed in the holding
cell. He admitted he used profanity after
he was placed in the holding cell. He eventually
asked for water to take his medication and again tried to explain the usual medication
procedure. Defendant testified Officer
German suddenly used pepper spray on him.
Defendant couldn’t see, and he sat down in the holding cell. Defendant testified he got “real loud†and
“real upset†about what happened, and he was sprayed again. Defendant was disoriented and couldn’t see,
and he heard Officer Holguin say, “ ‘Now you can live like Ray Charles.’ â€
On cross-examination,
defendant admitted inmates are placed in the SHU because they are disruptive or
have caused problems. Defendant admitted
he was convicted of carjacking in 1995, robbery in 1996, theft with prior theft
convictions in 2005, and two counts of battery by a prisoner on a nonprisoner
in 2009.
Devonte Harris
Devonte Harris,
another inmate, testified for the defense. He was previously convicted of two counts of
kidnapping to commit robbery and robbery in 2000.
Harris testified
about an alleged encounter he had with Officers German and Holguin. On February 24, 2011, Harris was housed in
the Corcoran SHU because of rule violations.
German and Holguin were about to process and escort him to the
yard. Harris complained to them and said
his access to the yard was being delayed.
Harris testified
as they escorted him to the yard, Holguin pressed him against the wall. German told Harris to shut up and not to say
anything since he was getting his yard time.
German aggressively yanked Harris’s arm, forced Harris to stop, and told
him not to walk unless told to do so.
Harris testified
a sergeant was nearby and asked what was going on. Harris was about to complain when German
yanked Harris’s arm to stop him. German
told Harris: “ ‘I thought I said
don’t say a word.’ †The sergeant
told the officers to return Harris to his cell.
Harris testified
that instead of going back to his cell, Holguin and German took him to the rotunda
office. Holguin shoved Harris into the wall. Holguin held Harris by the neck and continued
to push his face into the wall. German
kicked Harris’s legs far apart, as if he was forcing Harris to do the
splits. Both officers verbally
threatened him. The sergeant again
appeared, and Harris said he wanted to file a complaint for excessive force.
Harris testified
he suffered a swollen cheek, pain on the right side of his chest and his back,
and needed ice on his forehead. Harris
testified he filed a complaint against the officers. He admitted that he had filed numerous
administrative complaints and lawsuits against other correctional
officers. He denied that he threatened
other officers with taking their bank accounts because of his numerous
lawsuits.
Officer German
testified he was not punished, reprimanded, or disciplined for his conduct
during the incident with defendant.
Officer German
testified he did not assault or threaten Harris as Harris claimed. Harris was irate and resisted being escorted
to the yard. Harris filed a complaint
against German because of the alleged yard incident. German testified he went through an
investigation by internal affairs. He
could have lost his job or his pay.
However, he was not reprimanded or punished in any way. German believed Harris provoked incidents
with numerous correctional officers so he could file lawsuits against them.
Correctional
Sergeant Jesus Martinez testified Harris was disruptive and frequently filed
complaints and lawsuits against officers.
Harris had threatened Martinez and other officers that he would take their
money and their jobs as a result of his lawsuits. Martinez refuted Harris’s account of the yard
incident, and testified Harris was being disruptive and refused to comply with
the officers’ orders as they escorted him to the yard. Martinez saw Harris’s face that day and did
not see any injuries.
DISCUSSION
Impeachment with prior convictions
Defendant
contends the court improperly permitted him to be impeached with his two prior
convictions for battery by a prisoner on a nonconfined person (§ 4501.5). Defendant asserts impeachment with those
convictions was prejudicial because they were identical to the charged offense,
and the court failed to conduct the appropriate prejudice analysis.
A.
Background
As
we will discuss further in issue II, post,
defense counsel advised the court that defendant would testify. Counsel stated he advised defendant he would
be impeached with his prior convictions, and defendant said he understood and
still wanted to testify. The court replied
that if defendant testified, his criminal history would be admissible to
impeach him because his prior convictions were “moral turpitude crimes,
right?†Defense counsel said yes.
When
defendant testified, he admitted he had prior felony convictions for carjacking
in 1995, robbery in 1996, theft with prior theft convictions in 2005, and two
prior convictions for battery by a prisoner on a nonconfined person in
violation of section 4501.5. Defense
counsel did not object to the impeachment.
B.
Analysis
We first note
defense counsel did not object to the court’s ruling that defendant would be
impeached with his prior convictions and cannot raise this issue on
appeal. (People v. Hines (1997) 15 Cal.4th 997, 1030.) In the alternative, defendant argues defense
counsel was prejudicially ineffective for failing to object to impeachment with
his prior violations of section 4501.5. “To
establish ineffective assistance, defendant
bears the burden of showing, first, that counsel’s performance was deficient,
falling below an objective standard of reasonableness under prevailing
professional norms. Second, a defendant
must establish that, absent counsel’s error, it is reasonably probable that the
verdict would have been more favorable to him. [Citations.]†(People v. Hawkins (1995) 10 Cal.4th
920, 940, overruled on other grounds in People v. Lasko (2000) 23
Cal.4th 101, 110 and People v. Blakeley (2000) 23 Cal.4th 82, 89.) We thus turn to the merits.
Evidence that a
witness has a prior felony conviction involving moral turpitude is admissible
to attack the witness’s credibility, subject to a determination of prejudice
under Evidence Code section 352. (Cal.
Const., art. I, § 28, subd. (f); Evid. Code, § 788; People v. Castro
(1985) 38 Cal.3d 301, 306, 313-317; People v. Robinson (2011) 199
Cal.App.4th 707, 712.)
Moral
turpitude is not limited to dishonesty, but extends to crimes that involve
other sorts of moral depravity and a readiness to do evil. (People v. Castro, supra, 38 Cal.3d at
p. 315; People v. Robinson,
include “conduct involving violence, menace or threats [citations].†(People v. Lepolo (1997) 55 Cal.App.4th
85, 90; People v. Williams (1999) 72
Cal.App.4th 1460, 1464.)
Defendant
concedes his prior convictions for carjacking, robbery, theft with prior
theft-related offenses, and battery by a prisoner on a nonconfined person were
offenses of moral turpitude and could be used to impeach his trial
testimony. (See, e.g.,
918, 925; People v. Gray (2007) 158
Cal.App.4th 635, 641; People v. Waldecker
(1987) 195 Cal.App.3d 1152, 1156; People
v. Clarida (1987) 197 Cal.App.3d 547, 552; People v. Williams, supra,
72 Cal.App.4th at pp. 1464-1465.)
However,
defendant asserts defense counsel should have argued that impeachment with the
two violations of section 4501.5 was unduly prejudicial pursuant to Evidence
Code section 352 because he was being tried for committing the same
offense. In exercising discretion under
Evidence Code section 352, the court should consider whether the prior
conviction reflects lack of honesty and integrity, the remoteness in time of
the priors to the current offense, whether the priors concern the same or
substantially similar conduct to the current offense, and the effect the
admission of the priors would have on the defendant’s decision to testify due
to fear of impeachment. (
636, 644.)
“Prior
convictions for the identical offense are not automatically excluded. ‘The identity or similarity
of current and impeaching offenses is just one factor to be considered by the
trial court in exercising its discretion.’
[Citation.]†(People v. Green
(1995) 34 Cal.App.4th 165, 183; People v.
Mendoza, supra, 78 Cal.App.4th at
p. 925.) The court does not abuse
its discretion if it decides to permit impeachment with a prior conviction
which is similar to the charged offense.
(See, e.g., People v. Gutierrez (2002) 28 Cal.4th 1083, 1139; People
v. Tamborrino (1989) 215 Cal.App.3d 575, 590.)
In addition,
there is no limitation on the number of prior felonies admitted for
impeachment, and that is simply one of the factors which must be weighed
against the danger of prejudice. (
identical] prior convictions for impeachment is not precluded as a matter of
law [citation], and a series of crimes may be more probative than a single
crime,…†(People v. Green, supra,
34 Cal.App.4th at p. 183.)
Defendant’s
prior convictions and the charged offense were for violations of section 4501.5,
which is violated when a person who is “confined in a state prison of this
state … commits a battery upon the person of any individual who is not himself
a person confined .…†A violation
of section 4501.5 is often described as battery by a prisoner on a correctional
officer. (See, e.g.,
924, 930-931.) Defendant committed the
prior violations in 2007, while he was confined in state prison, and he was
convicted and sentenced in 2009.
Defendant
asserts the two section 4501.5 violations were unduly prejudicial because they
improperly advised the jury that he had behavioral problems in prison. However, we cannot say the court would have
abused its discretion to permit impeachment with the section 4501.5 offenses if
defense counsel raised a prejudice objection.
Defendant testified and was properly impeached with three theft-related
offenses of moral turpitude – robbery, carjacking, and theft with a prior
theft-related conviction. Defendant admitted
he was housed in the Corcoran SHU when the incident in this case occurred. Defendant further admitted inmates are placed
in the SHU because they are disruptive or have caused problems, he became
verbally abusive and felt disrespected when the officers escorted him to the
holding cell, and he felt he was being singled out by the procedure. The very nature of defendant’s circumstances
indicated to the jury he had already demonstrated disruptive behavior in the
prison setting.
Even
assuming the court would have excluded the two prior section 4501.5 convictions
as prejudicial, any error in the erroneous admission of evidence is a ground
for reversal “only when the court, ‘after an examination of the entire cause,
including the evidence,’ is of the ‘opinion’ that it is reasonably probable
that a result more favorable to the appealing party would have been reached in
the absence of the error….†(People
v. Watson (1956) 46 Cal.2d 818, 836; see also Evid. Code, § 353; People
v. Marks (2003) 31 Cal.4th 197, 226-227.) There was no reasonable probability of a more
favorable result for defendant. Given
the very nature of the charged offense, the jury was aware defendant was an
inmate in state prison, and housed in the SHU.
The critical evidence about defendant’s disruptive behavior was provided
by Kemmpf, the nurse, who described defendant’s previous and repeated
“cheeking†of medication, the need to move him to the holding cell to ensure he
took his medication, and his verbally abusive and obscenity-laced tirades as Kemmpf
tried to convince him to take his medication.
The two prior convictions were no more prejudicial than the evidence in
support of the charged offense.
II.
Unification of substantive charge and special
allegations
At
the beginning of trial, the court granted defendant’s motion to bifurcate the
charged offense from the prior conviction allegations. However, the court reconsidered and reversed
that ruling when defendant decided to testify, and reunified the jury trial on
the substantive offense with the special allegations.
Defendant
contends the court improperly withdrew its bifurcation order and ordered a
unified jury trial of both the substantive charge and special allegations. Defendant asserts the documentary evidence
introduced to prove the prior convictions was extremely prejudicial and
referred to matters beyond the facts of his prior convictions.
A.
Background
In
addition to the substantive charge, the amended information alleged defendant
had two prior strike convictions from Los Angeles County for (1) carjacking in
February 1996 (§ 215, subd. (a)); and (2) robbery in September 1996 (§ 211). It was also alleged he had two prior prison
term enhancements based on (1) the same robbery conviction in September 1996;
and (2) petty theft with a prior theft-related conviction in March 2005 (§ 666).
On
the first day of trial, defense counsel requested bifurcation of the prior
conviction allegations from the substantive charge. The court replied:
“All right, which means that we’re
going to try separately the strike prior and prison priors;
going to testify we’ll unbifurcate because he’ll be subject to cross
examination.†(Italics added.)
Defense counsel did not object.
After
the prosecution rested, defense counsel advised the court outside the jury’s
presence that defendant would testify.
Counsel stated he informed defendant “the consequence of testifying is
that this bifurcated proceeding would then become unbifurcated,†his prior convictions
would be admissible, and the jury would learn about his criminal history.
The court asked
defendant if he understood and still wanted to testify. Defendant said, “Yes.â€
“THE
COURT: [¶] And, then with reference to original motion
that you made to bifurcate the proceedings you’re noting that we would
essentially unbifurcate the proceedings and the jury would then make a
decision, in this case, in the People’s case-in-chief with reference to not
only the underlying offense but the strike priors and the prison priors,
correct?
“[DEFENSE
COUNSEL]: To be clear,
indicating our intention that my client is going to testify and I know it’s
probable that the Court will entertain a motion to unbifurcate.
“THE
COURT: That’s because when he
testifies his criminal history will be admissible because it’s moral turpitude
crimes, right?
“[DEFENSE
COUNSEL]: Yes.†(Italics added.)
The
prosecutor moved to “unbifurcate,†and to reopen his case to introduce the documentary
evidence in support of the special allegations and his prior convictions. Defense counsel replied that was reasonable. The court stated it would read the
allegations to the jury, and the prosecutor could introduce the relevant
evidence and advise the jury the issue was now before them.
When
the jury returned, the prosecutor introduced the documentary evidence about the
prior convictions. The court asked if
there were any objections and defense counsel said no. The court read the special allegations to the
jury, that defendant pleaded not guilty, and the jury would determine the truth
of those allegations. The jury
subsequently found the special allegations true.
B.
Analysis
broad discretion to control the conduct of a criminal trial includes the
authority to bifurcate the determination of the truth of a prior-conviction
allegation from the determination of guilt of the charged offense. (People v. Calderon (1994) 9 Cal.4th
69, 75 (Calderon).) The primary
consideration for the trial court in ruling on a request to bifurcate a
sentence enhancement is whether the admission of evidence relating to the
enhancement during the trial on the charged offenses would pose a substantial
risk of undue prejudice to the defendant. (Id.
at pp. 77-78; People v. Burch
(2007) 148 Cal.App.4th 862, 866 (Burch).)
“[B]ifurcation is not
required in every instance. In
some cases, a trial court properly may determine, prior to trial, that a
unitary trial of the defendant’s guilt or innocence of the charged offense and
of the truth of a prior conviction allegation will not unduly prejudice the
defendant….†(Calderon, supra, 9
Cal.4th at p. 78, italics in original.) The denial of bifurcation will not unduly
prejudice the defendant when, “even if bifurcation were ordered, the jury still
would learn of the existence of the prior conviction before returning a verdict
of guilty….†(Ibid.)
For example, “when it is clear
prior to trial that the defendant will testify and be impeached with evidence
of the prior conviction [citation], denial of a request for a bifurcated trial
generally would not expose the jury to any additional prejudicial evidence
concerning the defendant….†(
The
determination of whether the risk of undue prejudice to the defendant requires
bifurcation is within the sound discretion of the trial court, and subject to
reversal only for an abuse of that discretion. (Calderon, supra, 9 Cal.4th at p. 79;
Burch, supra, 148 Cal.App.4th at p. 867.)
In
this case, the court did not abuse its discretion when it decided to reunify
the proceedings and deny bifurcation once defendant decided to testify. As we have already explained, defendant’s
trial testimony was properly impeached with his prior convictions for
carjacking, robbery, theft with prior
theft-related convictions, and battery by a prisoner on a nonconfined person.
The
three theft-related prior convictions were the basis for the prior strike
allegations and prior prison term enhancements, and were placed before the jury
when the court decided to reunify the trial.
These prior convictions were offenses of moral turpitude and properly
used to impeach his testimony. Thus, the
court’s decision to reconsider bifurcation, and reunify the jury trial on the
substantive charge with the special allegations, did not subject defendant to
prejudice beyond that from the appropriate impeachment of his trial testimony
with the same prior convictions.
Defendant
contends we should disregard Calderon
and instead follow an earlier decision from this court in People v. Martinez
(1985) 175 Cal.App.3d 881 (Martinez).
However, Martinez was effectively overruled by Calderon. In Martinez,
this court followed the “judicial rule of practice†stated in People v.
Bracamonte (1981) 119 Cal.App.3d 644, 654, that whenever a defendant pleads
not guilty of prior convictions he is entitled
to a bifurcated proceeding. (Martinez,
supra, 175 Cal.App.3d at p. 892.) In
Calderon, however, the California Supreme Court expressly disavowed the Bracamonte
rule, and held that a unitary trial is acceptable where the trial court has
determined that it will not prejudice the defendant. (Calderon, supra, 9 Cal.4th at pp. 72,
78.) Since Martinez was premised
on the Bracamonte rule, it is no longer persuasive authority.
Defendant
further contends the prosecution’s documentary evidence introduced to prove the
prior convictions included prejudicial details beyond the facts of his prior
convictions, including notations about the prison terms imposed for those
convictions, and his multiple violations of prison rules and loss of credits. Defendant argues the jury could have
interpreted the unredacted records to mean he was a person with a criminal
disposition, who repeatedly broke prison rules and committed the charged
offense.
The
prosecution introduced defendant’s prison records pursuant to section 969b,
which provides that certified copies of state prison records are prima facie
evidence that a defendant has been convicted of a crime and served a prison
term. (See, e.g., People v. Pearl
(2009) 172 Cal.App.4th 1280, 1286; People v. Scott (2000) 85 Cal.App.4th
905, 910-911.) In addition to evidence
of the prior convictions, the records contained numerous abbreviations and
notations such a “WCL,†“WC LOSS,†and “BCL.â€
These terms were not otherwise defined, and it is speculative to
conclude the jury equated these terms with rule violations.
Although it may
be better practice to redact prison packets admitted to show prior convictions
or prison terms, we cannot say that allowing the admission of defendant’s unredacted
prison packet in this case exceeded the bounds of reason. Defendant was properly impeached with several
prior convictions of moral turpitude, thus raising the obvious inference that
he was sentenced to prison for those felony convictions. He testified he was housed in Corcoran’s SHU,
and admitted that inmates are placed in SHU because they are disruptive or have
caused problems in the prison. Kemmpf
testified about defendant’s prior disruptive behavior when he previously
refused to take his medication, and his verbally abusive and resistant conduct on
the day of the incident.
Defendant asserts
that while defense counsel initially moved for bifurcation, counsel was
prejudicially ineffective for acquiescing to the court’s decision to reunify
the trial. However, defendant cannot demonstrate
prejudice because, as discussed above, the trial court did not abuse its
discretion by admitting the prior convictions for impeachment purposes or by
reunifying the trial as a result of defendant’s decision to testify.
III.
Due process
Defendant
argues his trial was fundamentally unfair as a result of the reunification of
his trial, the jury’s review of the unredacted documentary evidence, and the
use of his prior violations of section 4501.5 to impeach his trial testimony.
Defendant’s failure
to raise due process objections to these evidentiary issues necessarily precludes
review of this issue. (
435-436.) In any event, the admission of
evidence may violate due process only if there is no permissible inference a
jury may draw from the evidence. (People
v. Steele (2002) 27 Cal.4th 1230, 1246.) In addition, a court’s decision to deny
bifurcation requires reversal only if defendant shows “the failure to bifurcate
resulted in ‘ “ ‘gross unfairness’ amounting to a denial of due
process.†’ [Citations.]†(Burch,
supra, 148 Cal.App.4th at p. 867.)
As we have
explained, there were clearly permissible inferences to draw from the evidence,
which was properly admitted to impeach his credibility and prove the special
allegations. Moreover, “the admission of
evidence, even if erroneous under state law, results in a due process violation
only if it makes the trial fundamentally unfair. [Citations.]†(People
v. Partida, supra, 37 Cal.4th 428, 439, italics in original.) Given the nature of the admissible evidence
in this case, defendant’s trial was not fundamentally unfair and his due
process rights were not violated.
Prosecutorial misconduct; German’s testimony about
Harris’s excessive force claim
Defendant
raises several instances of alleged prosecutorial misconduct, which we will
consider separately. His first
contention is that during rebuttal, the prosecutor violated an evidentiary
ruling from the court when he questioned Officer German about whether he was
disciplined as a result of Harris’s complaint of excessive force.
A.
Prosecutorial misconduct
We
begin with the well-settled law on prosecutorial misconduct. “A prosecutor’s misconduct violates the
Fourteenth Amendment to the United States Constitution when it ‘infects the
trial with such unfairness as to make the conviction a denial of due process.’ [Citations.] In other words, the misconduct must be ‘of
sufficient significance to result in the denial of the defendant’s right to a
fair trial.’ [Citation.] A prosecutor’s misconduct that does not render
a trial fundamentally unfair nevertheless violates California law if it
involves ‘the use of deceptive or reprehensible methods to attempt to persuade
either the court or the jury.’ [Citations.]â€
(People v. Cole (2004) 33 Cal.4th
1158, 1202.)
“To
preserve for appeal a claim of prosecutorial misconduct, the defense must make
a timely objection at trial and request an admonition; otherwise, the point is
reviewable only if an admonition would not have cured the harm caused by the
misconduct. [Citation.]†(People v. Price (1991) 1 Cal.4th 324,
447; People v. Silva (2001) 25
Cal.4th 345, 373.)
As
we will explain, defense counsel did not make prosecutorial misconduct
objections or request admonitions to most of the instances which defendant now raises
on appeal, and precludes his appellate claims of misconduct. (People
v. Cunningham (2001) 25 Cal.4th 926, 1000; People v. Cain (1995) 10 Cal.4th 1, 48.)
In the
alternative, however, defendant claims counsel was prejudicially ineffective
for failing to preserve the objections.
We will thus examine the merits of defendant’s claim that the prosecutor
violated the court’s evidentiary ruling when it questioned Officer German about
the investigation into Harris’s complaint against him.
B.
Officer German’s testimony
As explained
above, defendant called Devonte Harris, another Corcoran inmate, to testify
about his prior encounter with Officers German and Holguin. Harris claimed German used excessive force
against him, and he filed a complaint about German’s conduct.
In
rebuttal, the prosecutor recalled Officer German to testify about the incident
with Harris, and the subsequent complaint Harris filed against him. The prosecutor asked German what happened
after the Harris complaint was filed “as far as your review.†Defense counsel objected for hearsay. The court sustained the objection.
The prosecutor
asked German whether he was reviewed and how that worked. German said he was investigated by Internal
Affairs, he was interviewed, the inmate was interviewed, and “they kind of come
up with a conclusion of what actually happened.†The prosecutor asked what was the
conclusion. Defense counsel again objected
for relevance.
The court
excused the jury and held the evidence was clearly relevant. Defense counsel raised a hearsay
objection. The prosecutor replied the
evidence was not being admitted for the truth of the matter, but Officer German
had personal knowledge of being told the results of the investigation. The court replied that German could not “opine
on what someone else thought about what happened,†but he could testify about
whether or not he was punished or disciplined.
After further
discussion, the court held Officer German could testify that he was not
disciplined, but he could not quote from the conclusions of the third party
fact-finder.
Officer
German returned to the stand and the prosecutor again asked him about the
review process. German testified the
investigation was conducted by an Internal Affair’s panel. Defense counsel raised relevance and
prejudice objections which were overruled.
In response to the prosecutor’s questions, German testified he was not
reprimanded or punished in any way as a result of the incident with Harris, he
did not lose pay, and he did not lose his job.
The
prosecutor continued:
“Q. … As far as you know, in any way was any
of your conduct in regards to that incident with inmate Harris considered out
of line, as far as you know?
“A. No.â€
Defense counsel objected for hearsay. The court sustained the objection.
The
prosecutor continued and asked the question “a different way,†as to whether if
did anything during the Harris incident “that was considered out of proper
procedure, out of line .…†Defense
counsel objected for hearsay. The court
directed the prosecutor to continue. The
prosecutor asked whether he was “made aware of that as an officer.†German said, “Yes.†Defense counsel again objected, and it was
overruled.
Finally,
the prosecutor asked German whether he received any type of reprimand or punishment
for the incident with defendant. German
said no.
C.
Analysis
“It is misconduct for a
prosecutor to violate a court
ruling by eliciting or attempting to elicit
inadmissible evidence in violation
of a court order. [Citation.]†(People v. Crew (2003) 31 Cal.4th 822, 839.)
“Such misconduct is exacerbated if the
prosecutor continues to attempt to elicit such evidence after defense counsel
has objected. [Citation.]†(People
v. Smithey (1999) 20 Cal.4th 936, 960.)
If the prosecutor asks a question that is likely
to elicit a reference to inadmissible evidence,
the question may constitute “misconduct even if the
such a reference. [Citations.]†(People v. Leonard (2007) 40 Cal.4th
1370, 1405.)
We first note
that while defense counsel raised evidentiary objections to the prosecutor’s
questions to Officer German, he never claimed the prosecutor engaged in
misconduct when he asked German the questions about the review board in order
to preserve a prosecutor misconduct objection on that point. (People
v. Cain, supra, 10 Cal.4th at
p. 48.)
In
any event, the entirety of this sequence demonstrates the prosecutor did not
violate the court’s evidentiary ruling or attempt to elicit inadmissible
evidence when he questioned Officer German about the administrative complaint. After defense counsel’s initial hearsay
objections, the court clarified the prosecutor could ask German if he was
disciplined as a result of Harris’s complaint since he had personal knowledge
of that fact, but he could not testify about the conclusions of the review
board. The prosecutor’s subsequent
questions to German attempted to comply with the court’s ruling by focusing on
German’s personal knowledge of the results of the investigation. While his questions may have been inartful,
the prosecutor focused the questions on German’s personal knowledge of whether
he was advised of the results of the review process and whether he was
disciplined. The prosecutor did not
commit misconduct because these were matters within German’s personal knowledge.
V.
Prosecutorial misconduct; Alleged vouching for
Officer German
Defendant
next contends that during closing argument, the prosecutor improperly “vouchedâ€
for the credibility of Officer German and relied on facts not in evidence to
bolster his credibility. As we will
explain, however, the prosecutor relied on admissible evidence when, during
closing argument, he discussed German’s credibility and the defense accusations
against him.
A.
Officer German’s testimony
During
his trial testimony, Officer German said he had been a correctional officer for
almost 11 years, that he worked at Corcoran for the entire time, and that he
still worked at Corcoran. Defense
counsel asked German if he was upset when defendant used vulgar language and
obscenities toward him. German said no,
because he was “used to it.â€
Defense counsel
also asked Officer German if he had ever “assaulted an inmate in which it
wasn’t warranted.†The prosecutor’s
objection was overruled, and German replied no.
During his
rebuttal testimony, Officer German testified he had to use different force
options during his time as a floor officer, and he had kept his job for 11
years. German testified he would lose
his job if he used pepper spray against an inmate without cause.
“Q. Would
you want to put your job on the line, for instance in this case with
[defendant], by just spraying him with your pepper spray when there’s no reason
outside the guidelines? Would you want
to do that?
“A. No.â€
The prosecutor
asked Officer German whether there had been any indication made to him that he
did anything “out of line†regarding the incidents with defendant and Harris. German said no.
B.
Closing argument
In
the course of closing argument, the prosecutor addressed the allegations of
defendant and Harris against Officer German:
“Officer
German has been a correctional officer for 11 years, there’s no evidence of
it. Give him some credit for his record
that he has worked as a correctional officer for 11 years and everything about
his behavior in this case and his testimony seemed professional and above
board. And, you have to ask yourself why
would he just spray an inmate just because he’s annoyed with him, upset a
little bit, the inmate said something that offended him. He’s use[d] to hearing that, he’s heard every
curse word in the book over the last 11 years.
Is it reasonable to believe that Officer German would do that? Just hall [sic] off and spray him?
Well, it just doesn’t make sense to believe that when you consider all of
the circumstances.
Later
in argument, the prosecutor returned to the allegations against Officer German.
“And, like I
said, if he wanted to get at the defendant he wouldn’t have done it like
that. He’s smarter than that. He’s been working there for 11 years. He would know how to get at the defendant, if
he wanted to, and not let anybody know about it and not get to this point where
it’s in front of all of us.
“When
you look at, again, how the defense had tried to put the officers on
trial. They brought in inmate
Harris. What was he here for? Pretty much to dirty up the officers. But, I submit it didn’t work. He didn’t dirty up the officers because Officer
German’s conduct during that incident with inmate Harris was reviewed very
thoroughly and he was cleared of all wrong doing. He was not punished, not reprimanded, not
docked in pay, he didn’t [lose] his job, obviously. So it was confirmed how he acted in that
incident with inmate Harris was correct and above board and according to
procedure. In a way, Officer German has
already had his day in front of the review board or his day in court, if you
will, because he was reviewed.â€
Defense
counsel objected. The prosecutor replied
Officer German’s conduct was reviewed.
The court overruled the objection.
The prosecutor continued: “And,
he was cleared of any wrongdoing.â€
Defense counsel again objected and the court overruled him.
The prosecutor
further argued:
“And you can
rest assured that when officers don’t follow the guidelines there’s checks and
balances out there. This isn’t the only
check and balance. The defense wants to
turn this into the check and balance on these officers and tell them how to do
their jobs and what to do or not to do.
They have to do their jobs and when they don’t do it right they get
reviewed and there’s [sic] consequences. So, all evidence in this case proves that the
officers did their job correctly. I
don’t think you need to spend much time questioning their conduct.â€
Defense
counsel did not object to this argument.
C.
Analysis
A
prosecutor commits misconduct where he or she misstates or mischaracterizes the
evidence or asserts facts not in evidence. (People
v. Osband (1996) 13 Cal.4th 622, 698.)
However, when a
claim of prosecutorial misconduct “ ‘focuses on comments made by the
prosecutor before the jury, the question is whether there is a reasonable
likelihood that
applied any of the complained-of remarks in an objectionable fashion.’ [Citations.]
Moreover, prosecutors ‘have wide latitude to discuss and draw inferences
from the evidence at trial,’ and whether ‘the inferences the prosecutor draws
are reasonable is for the jury to decide.’
[Citation.]†(
“A
prosecutor may comment upon the credibility of witnesses based on facts
contained in the record, and any reasonable inferences that can be drawn from
them, but may not vouch for the credibility of a witness based on personal
belief or by referring to evidence outside the record. [Citations.]â€
(People v. Martinez (2010) 47
Cal.4th 911, 958.) “Prosecutorial
assurances, based on the record, regarding the apparent honesty or
reliability of prosecution witnesses, cannot be characterized as improper ‘vouching,’
which usually involves an attempt to bolster a witness by reference to facts outside
the record. [Citation.]†(People
v. Medina (1995) 11 Cal.4th 694, 757, italics in original.)
As
discussed in issue IV, ante, the
prosecutor properly elicited Officer German’s rebuttal testimony that he was
investigated as a result of Harris’s complaint, he was not reprimanded or
disciplined, and he was not reprimanded or disciplined because of the incident
with defendant. These were matters
within German’s personal knowledge. The
prosecutor’s closing argument regarding these aspects of German’s testimony was
appropriate and based on the inferences from the admissible evidence.
In
addition, the prosecutor did not engage in misconduct or improperly “vouch†for
Officer German when he addressed German’s work history. The prosecutor relied on the above-quoted
portions of German’s trial testimony when he addressed the credibility of the
allegations made against him by defendant and Harris. German testified about his employment at
Corcoran, he had used force against other inmates during his work history, and
he still worked at Corcoran. German
further testified he was not upset about defendant’s conduct that day, that he
would lose his job if he used force without cause, and that he would not put
his job on the line by using pepper spray in this instance.
The
prosecutor’s argument about Officer German’s work history, and the credibility
of the defense allegations against him, was based on admissible evidence and
did not amount to improper vouching.
VI.
Prosecutorial misconduct; reasonable doubt
Defendant’s
final claim of prosecutorial misconduct is based on a portion of the
prosecutor’s closing argument where he allegedly misstated his burden of
proving the charged offense beyond a reasonable doubt. As with his other allegations, defense
counsel did not raise a prosecutorial misconduct objection or request an
admonition. We thus turn to the merits
based on defendant’s alternate claim of ineffective assistance.
A.
Background
The
jury received the pattern instruction on reasonable doubt, CALCRIM No. 220, as
follows.
“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 entire 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.â€
Defendant’s
claim of error is based on the following portion of the prosecutor’s closing
argument:
“This
mention of reasonable doubt, focus on that word ‘reasonable.’ You have to ask yourself, ‘what is reasonable
to believe and what is reasonable to doubt?’
And, I know that we spent a lot of time trying to tell you and imploring
you to believe the things that we want you to believe but you have to use your common
sense. You had that with you before you
came to court, I’m sure you still have it now; use that when you deliberate.
What we say isn’t evidence, it’s just argument so use your common sense when
deliberating and ask yourself about reasonable doubt and whether there is
reasonable doubt in this case.
“Remember
the instruction that you have it says that reasonable doubt doesn’t mean beyond
all doubt it just means because everything in life is open to some possible
doubt. It has to be beyond a reasonable
doubt so don’t forget that word ‘reasonable.’
“
I urge you to try to write it down. Try
to write down what you think is reasonable doubt in this case. If you can’t write anything down then I
suggest that you don’t have reasonable doubt. And, if you do write something down look at
what you wrote down and ask yourself if that has anything to do with punishment
or bias or sympathy or prejudice; if it does then it’s not reasonable doubt,
those are things—areas you are not suppose to consider. But also ask yourself, if you write something
down, if it is something that is factually important to you making your
decision: Whether there’s a little bit
of [pepper] spray on his shoulders is that something that is pivotal in your
goal as jurors in deciding this case?
Ask yourself that, as well.†(Italics
added.)
B.
Analysis
“It is improper for a prosecutor to misstate
the law generally and, in particular, to attempt to lower the burden of proof. [Citation.]â€
(People v. Williams (2009) 170
Cal.App.4th 587, 635.) “[A] prosecutor
may not suggest that ‘a defendant has a duty or burden to produce evidence, or
a duty or burden to prove his or her innocence.’ [Citations.]â€
(People v. Woods (2006) 146
Cal.App.4th 106, 112-113.)
Defendant
points to the italicized language above and argues the prosecutor misstated the
law and effectively told the jury it had to find “articulable facts†for it to have reasonable
doubt of defendant’s guilt. We note the
prosecutor did not use the phrase “articulable facts.†(See, e.g., People v. Thomas (2012) 53 Cal.4th 771, 811-812 [rejecting claim
that pattern instruction on reasonable doubt improperly required jury to
“articulate†reasons for finding reasonable doubt];
932, 934-935 [jurors should not be told they must “articulate a ‘real reason’ â€
for doubt]; Chalmers v. Mitchell (2d
Cir. 1996) 73 F.3d 1262, 1268 [instruction cannot tell the jurors they must be
ready to articulate a reason for their doubts because “the jury might believe
it should look to the defendant to articulate the reason for the doubt, in
essence requiring him to prove his innocenceâ€].)
As we have already noted, however, defense
counsel did not object to this portion of closing argument, and any
misstatement could have been cured with an appropriate admonition. (People v. Hinton (2006) 37 Cal.4th
839, 863.) As for his alternative claim
of ineffective assistance, we find defense counsel’s failure to object was not prejudicial. The trial court instructed with CALCRIM No.
220 on the prosecution’s burden of proof beyond a reasonable doubt. The court also gave CALCRIM No. 200, which
admonished the jurors that “[y]ou must follow the law as I explain it to you,
even if you disagree with it. [I]f
you believe that the attorneys’ comments on the law conflict with my
instructions, you must follow my instructions.†(Italics added.) The jury was correctly instructed on the
applicable reasonable doubt burden of proof and that the court’s instructions
superseded any conflicting argument on the law by the prosecutor. We presume the jury followed the trial court’s
instructions without any indication to the contrary, and conclude the jury applied
the correct reasonable doubt burden of proof, ignoring the prosecutor’s closing
argument misstating that burden. (People
v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17; People v. Prince (2007)
40 Cal.4th 1179, 1295.)
Finally, based on the record in this case, we
conclude defendant was not denied a fundamentally fair trial because of the
prosecutor’s closing argument on this point.
Accordingly, we do not apply the Chapman
beyond a reasonable doubt) for federal Constitutional violations. (People v. Castillo (2008) 168
Cal.App.4th 364, 386-387, fn. 9; People v. Bordelon (2008) 162
Cal.App.4th 1311, 1323-1324.)
VII.
Defendant’s third strike term
Defendant
contends this court must vacate his third strike sentence and modify his
sentence to a third strike term based on the amendment of the third strike
provisions by Proposition 36. As this
court explained in People v. Yearwood (2013) 213
Cal.App.4th 161, however, defendant’s appropriate recourse
is to petition for a recall of sentence in the trial court pursuant to section
1170.126, the provision added by Proposition 36. He is not entitled to a remand for
resentencing on appeal under the amendments to sections 667 and 1170.12. (Yearwood, supra, 213 Cal.App.4th at pp. 171-172,
176.)
The
judgment is affirmed.
_____________________
Poochigian, Acting P.J.
WE CONCUR:
______________________
Detjen, J.
______________________
Peña, J.
citations are to the Penal Code unless otherwise indicated.
