Filed 11/7/13 P. v. Blake 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NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
HAROLD WAYNE BLAKE, JR.,
Defendant and
Appellant.
F064892
(Super.
Ct. No. BF137863A)
APPEAL from
a judgment of the Superior Court
of
John
Steinberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric
L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for Plaintiff
and Respondent.
-ooOoo-
Defendant
Harold Wayne Blake, Jr., (defendant) stands convicted, following a jury trial,
of willfully inflicting corporal injury on his spouse, during which he personally
inflicted great bodily injury.
name="_ftnref1" title="">[1] (Pen. Code,
Following a bifurcated court trial, he
was found to have suffered a prior conviction under the “Three Strikesâ€
law. (§§ 667, subds. (c)-(j),
1170.12, subds. (a)-(e).) His motion for
a new trial was denied, but his request to dismiss the prior strike conviction
was granted. He was sentenced to a total
of seven years in prison, and ordered to pay restitution and various fees,
fines, and assessments. On appeal, he raises
claims of prosecutorial misconduct. We
affirm.
FACTS
I
Evidence
Pamela Blake
(Blake) and defendant were married in September 2005. During the course of the marriage, Blake
became the sole provider. Blake grew
stressed because, while she was working long hours, defendant was gone most of
the time and not bringing home money. In
2008, Blake became frustrated enough that she wanted a divorce, and the couple
separated for a period of time. Although
Blake moved back in with defendant in 2010, the relationship was not good. Toward the beginning of 2011, while Blake was
at work, defendant spent time on a daily basis with a woman named Susie. Blake expressed concern about the
relationship, but defendant did not stop seeing Susie.
In July
2011, Blake and defendant resided in the 1700 block of Lake
Street, Bakersfield, with
their roommate, Christopher Stone.
name="_ftnref3" title="">[3] Things
were “pretty bad†in the marriage, and Blake expressed her desire for a divorce.
Defendant was not “very accepting†of
the idea.
On July 30,
Blake picked up her Jeep from an auto body shop. The alignment seemed off, so she had it
checked and discovered the front rotors were so worn, the vehicle was unsafe to
drive. Because of comments defendant
made about a month earlier, Blake thought defendant might have switched the
rotors on her Jeep with those on Susie’s vehicle. When Blake arrived home, around 5:00 p.m., she
found defendant lying on the bed, watching television. She asked if he had given the rotors from her
Jeep to Susie. Defendant quickly got off
the bed, grabbed his tennis shoes, and went to where Blake was standing at the
bedroom door. Blake moved to the right a
little because defendant was exiting. Defendant
head-butted Blake with a lot of force.
She fell against the wall. Defendant
put his arm around the lower part of Blake’s neck, shut the door, and dragged her
to the middle of the bedroom, choking her.
She felt pressure around her neck and had trouble breathing. She did not recall defendant saying anything,
but did hear the dogs barking. Defendant
released his hold on Blake, “flung†her into the closet door, and then “came at
[her] a second time.†She asked him to
stop. He put her in a second choke
hold. This time, his arm was right up
under her chin. He grabbed his wrist
with his other hand so that Blake’s head was in his elbow area, and he
continued to choke her. She struggled,
scratched, and hit him, but she still could not breathe. She went down on her knees, and he continued
to choke her. She started “seeing white
lights†and urinating. She then passed
out.
Blake did
not know how long she was unconscious, but she woke to find the left side of
her face on the floor and to see defendant letting the dogs out. Blake crawled over the bed. She was gasping for air, and her heart and
chest hurt. When she told defendant she
could not breathe and that her chest and heart hurt, he told her to sit on the
edge of the bed in front of the air conditioner, and she would be fine. He refused to let her leave the bedroom. She asked for the water bottle that was on
her nightstand; defendant uncapped it and poured the water on top of her head
and said, “there you go, bitch.â€
Defendant
started unscrewing the bedpost, asking her, “do I need to worry about you
calling the police? Do I need to worry
about you filing a report?†She kept
telling him no. She tried to screw the
bedpost back on because she was afraid he was going to use it on her. She was in pain and trying to breathe. He tried to talk to her while she sat there,
but she did not recall what he said.
Blake left
the bedroom about 8:00 that night. She and
defendant went to the drive-through window at Taco Bell to get dinner. Blake was unable to eat her food. She could not swallow anything other than her
beverage. When they got home, they sat
on the porch for a while. Blake went to
bed about 10:30 p.m.
About 1:30
to 2:00 the next morning, July 31, Blake awoke to find defendant in the bed
next to her, stroking her, saying he was sorry and did not mean to do it, and inviting
her to cuddle. She told him not to touch
her because she hurt. He lay there and
eventually fell asleep. She then got up
and started quietly gathering her belongings.
and leave. She needed to shower,
however, because she was still in the clothes she had been wearing when defendant
choked her. When she went into the
bathroom and looked in the mirror, she saw that both of her eyes were full of
blood. Blake showered and dressed.
At 6:30 a.m., when defendant rose,
Blake was on the front porch, drinking coffee, and getting ready to leave. Defendant asked where she was going. She told him she needed to go to work. Although she occasionally went shopping for
her job on Sunday afternoons, defendant questioned her going to work on a
Sunday morning. She asked him if he
thought she wanted anybody to see her like that, and what was she supposed to
tell people about her eyes. He said,
“oh, my God, I’m so sorry. [¶] … [¶] … I
can’t believe I did that.†Blake told
defendant she was going to buy a pair of dark sunglasses and do her shopping,
and she would be right back.
Blake shopped and then delivered the
groceries to the intermediate care facility where she worked. She then went to her brother’s house. Her head, eyes, neck, and whole body hurt. Due to her brother and sister-in-law’s concern
for her, Blake went to Memorial Hospital.
She spoke to the police there, and they took photographs.
While Blake
was with her brother, her cell phone rang a few times. She hung up each time. Blake’s brother eventually answered the call. Defendant was on the phone, and Blake’s
brother yelled at him. Defendant said,
“I did what I did, I will take my butt kicking like a man. You want me to come to your house or you want
to come over here[?]â€
name="_ftnref5" title="">[5]
On August
2, Blake went to Highgrove Medical Center, to see her primary care physician. Blake was referred to an ophthalmologist, Dr.
Alexandrakis, whom she saw on August 8. Because
her eyes were “full of blood†and she worked with the public, she requested
time off work until some of the blood dissipated. It took approximately three weeks for her
eyes to clear up completely. She
returned to work on August 29.
In October,
Blake made an appointment to see Dr. Wong, an ophthalmologist with whom she was
acquainted, because her right eye was still bothering her. Blake’s physical problems persisted as of her
January 2012 trial testimony.
Wong, a
physician specializing in ophthalmology, examined Blake on November 23. He observed some retinal damage that could
have been the result of long-term retinal bleeding. There were two small areas of retinal bleeding
in the right eye.
title="">[6]
Wong
explained that conjunctival hemorrhage refers to bleeding in the outermost coat
of the eyeball. That area of the eye is
extremely vascularized, and breakage in any of the blood vessels results in
conjunctival hemorrhage. When such
damage occurs, it is “quite obvious,†as the white part of the eye appears
filled with blood. In his practice, Wong
saw a lot of conjunctival hemorrhaging in the older population, age 65 and
above. In such individuals, the
condition is usually unilateral (in only one eye) and results from uncontrolled
blood pressure, blood thinning medication, or possibly some trauma. In the younger population, the condition is
usually due to injury, particularly a blunt trauma intrathoracic injury that
raises the pressure inside the chest. Bilateral
conjunctival hemorrhage is more consistent with trauma, such as a black eye, a
punch in the chest, a car accident, or a strangulation type of injury. The same mechanism that causes conjunctival
hemorrhage causes retinal hemorrhage; however, the retina is a tissue in the
back of the eye. If the injury were due
to strangulation, the amount of pressure needed to cause conjunctival
hemorrhage possibly would be less than that needed to cause retinal hemorrhage.
Wong
explained that petechia is an initial step in a conjunctival hemorrhage. It means some of the capillaries are broken,
but not the bigger blood vessels. Tiny
dots of hemorrhage will be scattered around the conjunctiva. The white of the eye will still be visible,
whereas with massive conjunctival hemorrhage, only blood can be seen. Petechiae indicate less pressure than hemorrhage.
Wong
reviewed photographs of Blake taken on July 31, 2011. The extensive bilateral conjunctival
hemorrhage was most suggestive of, and consistent with, trauma, either “intrathoracic
strangle†or getting punched extensively in both eyes at the same time. In strangulation, the blood circulation in the
head and neck has diminished return, which builds up pressure and breaks the
blood vessels. This mechanism is the
same for both conjunctival and retinal circulation.
Kern County
Sheriff’s Detective Wood specialized in domestic violence and had training and
experience in investigating crimes involving strangulation. She explained that strangulation is a form of
asphyxia characterized by the closure of blood vessels and/or air passageways,
and is caused by external pressure to the outside of the neck.
most common type of strangulation seen in domestic violence investigations is
manual strangulation. She explained that
persons who are strangled may, while being strangled, urinate, defecate, vomit,
or pass out. They may also see what they
call stars or black or white.
Strangulation can result in bruising to the neck, laryngeal trauma, eye
trauma, headaches, and subsequent difficulty with swallowing and speaking. Petechiae, which are produced when
capillaries burst due to external pressure on the neck, may form in the
eyes. There may also be conjunctival
hemorrhaging; this turns the white of the eye red. In Wood’s training and experience,
hemorrhaging indicates a more severe strangulation than the mere presence of petechiae.
Petechiae can also be caused by sky
diving, strenuous labor during childbirth, “horrible†fits of coughing, and
scuba diving.
II
Evidence
Kern County
Sheriff’s Deputy Gonzalez interviewed Blake at the hospital at approximately
7:30 p.m. He noted her left eye was
bloodshot, and blood was pooled under both eyes. She also had a bruise on one arm. Following defendant’s arrest that evening,
Gonzalez documented injuries to defendant’s left ear and scratches to his face.
Defendant
testified that he and Stone spent July 30 leveling the backyard and laying
sod. The day was very hot, and they
stopped working around 4:00 p.m. Stone
went inside to shower while defendant swept the driveway. Defendant then grabbed a couple bottles of
water and headed into the bedroom, where he prepared to take a shower.
Blake
arrived home about 5:00 p.m. Defendant
had just finished his shower and was dressing in the bedroom, when he heard her
come in the front door. She was angry
and screaming for him. Defendant slipped
on his shoes and headed for the door, at the same time receiving a text message
from Stone, stating he was scared and asking if he should leave. Defendant told him not to go anywhere. As defendant opened the bedroom door, Blake
was coming in. She said something, then
put her hands together and hit defendant in the solar plexus.
Jeep and putting them on his friend’s car.
As he buckled, he told her he did not do that, whereupon she grabbed his
ear and started slapping him with her fingers hooked to scratch or claw him. She injured his ear. When he tried to block her blows, she again
struck him, lower this time.
name="_ftnref9" title="">[9]
Blake’s
aggression caused defendant to back all the way across the bedroom. When he could go no farther, he slammed her
back against the closet door with his left arm. He then pinned her hands to the door. He never spun her around or grabbed her in a
carotid hold, nor did he fling her over by the closet door. Instead, as he had her hands pinned above her
head, he asked her what was wrong with her.
She tried to push her way off the door, but then he felt her relax and
he walked away. When he reached about
the middle of the foot of the bed, Blake lowered her head and rushed him. He put one hand to the upper part of her
body, above her breasts, and tossed her on the bed. He did not hit her in the neck area or head-butt
her. Because the bed rattled when she
landed on it, he started tightening the bedpost while he again asked her what
was wrong with her. She said she could
not breathe or swallow. She was lying on
the bed at the time. He said, “come
here, baby,†then pulled her up, took her to the other side of the bed, poured
water on both their heads, and turned on the ceiling fan to cool her down. She said she needed a drink, so he opened a
second bottle of water and handed it to her.
She drank half of it, then said she still could not breathe. He helped her to the other side of the bed,
sat her down, turned on the air conditioning unit, and asked her if that was
any better. She saw that his ear was
bleeding, and grabbed a tissue and started tending to his scratches. Blake never lost consciousness.
Defendant
asked her what she meant about the rotors.
He explained to her that the rotors from a Jeep would not fit on the
kind of car driven by his friend, Susie. During this discussion, defendant and Blake
worked their way to the front porch, having only remained in the bedroom from
about 5:00 p.m. to 5:20 or 5:30 p.m. They sat on the porch, talking mainly about
the Jeep, for about an hour and a half.
Blake went inside, got her stuff, and came out. They then went to get something to eat. Blake drove, picked the restaurant, and
ordered the food. When they got home,
they both ate. Blake only ate a portion
of her food, but she typically “eats like a bird†and likes to share her food
with the dogs. Blake then went inside to
lie down. Defendant finished texting his
son, then followed her inside. It was
about 10:00 or 10:30 p.m. They slept
together that night. Blake did not go to
sleep with urine on her panties; she was “a neat freak†and would never have
done so. Defendant never caused her to
urinate on herself.
The next
morning, defendant woke at approximately 6:30.
Blake was already up. She told
him to look at her eye. There was a
single bright red spot in the corner next to the bridge of her nose. Defendant apologized, but Blake started
getting snappy and said she would see him out on the porch. Although she never directly accused him of
causing the injury to her eye, he asked if she was going to call the police. She said she was not. He asked because of the hostile way she was
acting. Defendant did not physically
abuse Blake; he believed he may have inadvertently caused her eyes to bleed by
holding her hands to the wall and restraining her while she was pushing back.
Blake and
defendant drank coffee and smoked cigarettes out on the porch. Blake started “getting wound up†about having
to go to work with her eye like that.
Defendant did not know how to respond. She left at 8:00 a.m., and defendant went back
to work on the yard. Around 10:00 a.m.,
Stone came outside, accused defendant of beating Blake up, and punched him in the
gut and ribs. Defendant tried to text
Blake to ask what was going on, but she did not respond. At some point, defendant called her phone, but
her brother answered and “started going off,†so defendant hung up. He remained at home, trying to get in contact
with Blake, until after dark that night when the police arrived.
Blake had
defendant served with divorce papers while he was in jail.
DISCUSSION
Defendant
contends the prosecutor engaged in a pattern of misconduct throughout trial,
thereby violating defendant’s federal constitutional right to due process and
requiring reversal. The governing law is
settled. “A prosecutor’s conduct
violates the Fourteenth Amendment to the federal Constitution when it infects
the trial with such unfairness as to make the conviction a denial of due
process. Conduct by a prosecutor that
does not render a criminal trial fundamentally unfair is prosecutorial
misconduct under state law only if it involves the use of deceptive or
reprehensible methods to attempt to persuade either the trial court or the
jury.†(People v. Morales (2001) 25 Cal.4th 34, 44.) A prosecutor need not have acted in bad faith
for misconduct to have occurred. (
822-823.)
“‘As a
general rule a defendant may not complain on appeal of prosecutorial misconduct
unless in a timely fashion — and on the same ground — the defendant made an
assignment of misconduct and requested
that the jury be admonished to disregard the impropriety. [Citation.]’
[Citation.] [¶] The foregoing, however, is only the general
rule. A defendant will be excused from
the necessity of either a timely objection and/or a request for admonition if
either would be futile. [Citations.] In addition, failure to request the jury be
admonished does not forfeit the issue for appeal if ‘“an admonition would not
have cured the harm caused by the misconduct.â€â€™
[Citations.] Finally, the absence
of a request for a curative admonition does not forfeit the issue for appeal if
‘the court immediately overrules an objection to alleged prosecutorial
misconduct [and as a consequence] the defendant has no opportunity to make such
a request.’ [Citations.]†(People
v. Hill, supra, 17 Cal.4th at pp. 820-821; accord,
858.)
“When a
defendant makes a timely objection to prosecutorial argument, the reviewing
court must determine first whether misconduct has occurred, keeping in mind
that ‘“[t]he prosecution has broad discretion to state its views as to what the
evidence shows and what inferences may be drawn therefromâ€â€™ [citation], and
that the prosecutor ‘may “vigorously argue his [or her] case†…, “[using]
appropriate epithets warranted by the evidence.â€â€™ [Citation.]â€
(People v. Welch (1999) 20
Cal.4th 701, 752-753.) “When a claim of
misconduct is based on the prosecutor’s comments before the jury, … ‘“the
question is whether there is a reasonable likelihood that the jury construed or
applied any of the complained-of remarks in an objectionable fashion.â€â€™ [Citations.]â€
(People v. Gonzales and Soliz (2011)
52 Cal.4th 254, 305.) If misconduct
occurred, but it did not result in a denial of due process, “we determine
whether it is ‘reasonably probable that a result more favorable to the
defendant would have occurred’ absent the misconduct. [Citation.]â€
(People v. Welch, supra, 20
Cal.4th at p. 753.)
Disclosure
Defendant
first contends the prosecutor committed misconduct by failing to provide
discovery of the prosecution’s medical expert witness (Wong), and the
prosecution’s strangulation expert witness (Wood), before trial. He further says the trial court erred by
failing to instruct the jury with respect to the late disclosure.
1. Background
Defendant was arraigned on the information on November
28, 2011, and both parties requested discovery pursuant to section 1054 et seq.
The matter was assigned for trial on
January 23, 2012. On the date set for
trial, the prosecutor submitted a witness list that included Wood and Wong, as
well as two other doctors.
name="_ftnref11" title="">[11] Jury
selection consumed the bulk of that day and the next.
In limine
motions were heard beginning January 25, 2012. Defendant’s first such motion requested that
the prosecution immediately provide all notes and/or statements of witnesses
not previously produced. The prosecutor
represented she had provided everything as of that morning, although she
acknowledged receiving additional information from Blake’s brother the night
before, which she immediately emailed to defense counsel. Defense counsel represented that he had only
received Wong’s resumé, curriculum vitae (CV), and reports that morning, and
that he had not looked at any of them. Defendant’s
third in limine motion was to exclude opinion evidence as to the cause of Blake’s
eye injury or, in the alternative, to have an Evidence Code section 402
hearing on admissibility, with the objection being based on foundation and
hearsay. Defendant also objected to Wood
testifying, based on lack of notice, as defense counsel had been provided with
Wood’s CV, but no statement from her. The
court agreed to hold the requested Evidence Code section 402 hearings
before ruling on admissibility.
Wood testified,
outside the jury’s presence, concerning her training and experience,
particularly in the investigation of domestic violence cases involving
strangulation; the types of strangulation she had encountered in her training
and experience, and the physical symptoms experienced by individuals prior to
losing consciousness; her review of Blake’s statement and the reports in this
case; and whether she saw signs or symptoms of strangulation to unconsciousness.
Defense counsel cross-examined Wood
extensively with regard to these areas, and concerning carotid holds. At the conclusion of Wood’s testimony,
defense counsel objected that he did not have a report from her, her CV was not
provided until after the case was assigned for trial, and he could not now go
out and get medical opinions that contradicted what she said. He argued that she was qualified to testify
concerning the physical mechanics of strangulation, but not the medical aspects
of the subject. The court ruled that
Wood’s testimony would be limited to specified areas. With respect to the claim of late disclosure,
the court stated to defense counsel: “I
thought I offered you earlier, when we first talked about a continuance, you
indicated that your client did not want to waive time, and we wanted to go. If you need any continuance based on [Wood’s]
testimony right now, I can bring the jury back tomorrow morning, let you talk
to all your eyewitnesses, and give you everything else you need.†Defense counsel expressed his appreciation,
but did not ask for additional time.
A second
Evidence Code section 402 hearing was then held. Wong testified concerning his education and
training; which of Blake’s medical records he reviewed; and his examination and
diagnosis of Blake. He also testified
concerning possible causes of petechiae and conjunctival hemorrhage, and he discussed
what he saw in photographs of Blake taken shortly after the incident. Again, defense counsel undertook a detailed
cross-examination. At the conclusion of
the hearing, defense counsel objected that “the People knew about this doctor
back in November. At least the witness
did.†Counsel complained that he had not
received any report from Wong, and only received his statement that
morning. Counsel argued it was “very
late discovery†and “highly prejudicial.†The court ruled Wong could testify that
certain evidence was consistent with trauma and strangulation, but not that the
incident in July was a result of strangulation.
Wong was
the prosecutor’s first witness.
name="_ftnref12" title="">[12] In his
cross-examination of Wong in front of the jury, defense counsel brought out
that Wong’s reports were not transmitted until the day before Wong testified. Counsel also elicited that Blake saw Wong in
November because she wanted a second opinion of a diagnosis, and that a doctor
who had previously examined Blake did not observe the same damage to Blake’s
eye that Wong did. Defense counsel also
elicited that things such as coughing or heavy lifting could cause the type of
damage Wong observed, and that Blake and Wong had been acquainted for about two
years. Counsel further elicited that
Wong had received a letter of reproval from the medical board.
At the beginning
of court the next morning, January 26, 2012, defense counsel complained that
the defense had had no notice of the People’s strangulation expert before
Monday, January 23. Counsel acknowledged
the court had granted an Evidence Code section 402 hearing and had offered
to continue the matter to permit the defense to find its own expert, but,
counsel represented, the defense declined to do that because defendant was in custody
and wanted to get out. Defense counsel
further complained that the People had been debating which medical experts to
present, and they settled at the last minute on Wong, who had seen Blake back
on November 23, 2011. Counsel asserted Blake
was aware of the examination, and he argued the People had the responsibility
to become aware of it if they intended to use it. Yet, Wong did not even transmit his
information to the People until two days earlier, and defense counsel did not
get the information until a couple of hours or so before he had to
cross-examine the doctor. Defense
counsel asserted there was also late disclosure with respect to Blake’s
brother, and he complained that Blake had mentioned defendant’s criminal
history during her testimony.
name="_ftnref13" title="">[13] Counsel
stated: “It is a continuing pattern,
your Honor, of late discovery, and exceeding the proper discovery issues, and
crossing that line. And it does border on prosecutorial misconduct. I won’t make that motion at this time. I just want to advise the court about my
concerns because of this history and so that from now on hopefully we won’t do
that.†(Italics added.)
With
respect to Wong, the prosecutor responded that she had subpoenaed the other
ophthalmologist who examined Blake, and that she provided discovery with
respect to him “a long time ago.†A
problem then arose with that doctor becoming uncooperative because he found out
service was not proper. Rather than
force him to come in, the prosecutor spoke to Blake, who related she recently
had been seen by Wong. The prosecutor
represented that as soon as she found out about Wong, she provided discovery,
and she turned over everything to defense counsel as soon as she received it. The prosecutor also represented she had Wong
come early so defense counsel could talk to him, and she noted counsel
obviously had time to conduct research because he found a disciplinary action
against Wong.
During the
jury instruction conference, defense counsel asked the court to give CALCRIM
No. 306 (Untimely Disclosure of Evidence). The trial court found the instruction “very
troublesome.†Relying primarily on the
discussion regarding CALJIC No. 2.28 (CALCRIM No. 306’s counterpart) in
937, 942-943, the court expressed concern about the instruction’s effect on
both sides’ right to a fair trial, and concluded:
“On this case, I am not inclined to give [the
instruction] because I think I would be asking for probably a reversal.… It doesn’t -- it says this is what happened. It doesn’t tell [jurors] how they are
supposed to handle it. And it seems to
me we are leaving it up to the jury to try to decide what to do with the
pre-trial procedure as against -- and distract them from their substantive
issues that they have before them.
“What I
did do on this case also, [defense counsel], at every step of the way I offered
you continuances. And I understand you
didn’t want a continuance because you wanted to get done. You didn’t make a motion for mistrial. I understand why, you indicated that. And I offered you -- what I don’t normally
do, I offered you the 402 hearings on areas beyond just qualifications to
assist you in defense. And so I’m
comfortable that I don’t have to give this instruction. I’m comfortable that you have been able to
represent your client fairly and effectively.
And so that’s my ruling.â€
2. Analysis
The only
substantive discovery mandated by the federal Constitution is the disclosure of
material exculpatory evidence under Brady. (People
v. Ashraf (2007) 151 Cal.App.4th 1205, 1211.) Under Brady,
“the suppression by the prosecution of evidence favorable to an accused … violates
due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.†(Brady,
supra, 373 U.S. at p. 87.) This is so regardless of whether the
suppression was intentional, negligent, or inadvertent. (In re
Sodersten (2007) 146 Cal.App.4th 1163, 1225.) The duty to disclose such evidence is wholly
independent of the prosecutor’s obligation under section 1054 et seq. (
1238, 1244), exists even where there has been no request by the accused (
97, 107), encompasses both impeachment and exculpatory evidence (
667, 676), and extends to evidence known only to law enforcement investigators
and not to the prosecutor (Youngblood v.
West Virginia (2006) 547 U.S. 867, 869-870; Kyles v. Whitley (1995) 514 U.S. 419, 438). “In order to comply with Brady, therefore, ‘the individual prosecutor has a duty to learn of
any favorable evidence known to the others acting on the government’s behalf in
the case, including the police.’
[Citations.]†(
1031, 1042, quoting Kyles v. Whitley,
supra, at p. 437.)
it would be of value to the accused (People
v. Superior Court (Meraz) (2008) 163 Cal.App.4th 28, 51), evidence
presented at trial is not considered suppressed, regardless of whether it was
previously disclosed during discovery (People
v. Morrison, supra, 34 Cal.4th at p. 715).
Although
“the term ‘Brady violation’ is
sometimes used to refer to any breach of the broad obligation to disclose
exculpatory evidence — that is, to any suppression of so-called ‘
real ‘Brady violation’ unless the
nondisclosure was so serious that there is a reasonable probability that the
suppressed evidence would have produced a different verdict.†(Strickler
v. Greene (1999) 527 U.S. 263, 281, fn. omitted.) Thus, to merit relief on due process grounds,
“the evidence a prosecutor failed to disclose must have been both favorable to
the defendant and material on either guilt or punishment. Evidence would have been favorable if it would have helped the defendant or hurt the
prosecution, as by impeaching one of its witnesses. Evidence would have been material only if there is a reasonable probability that, had it
been disclosed to the defense, the result would have been different. The requisite reasonable probability is a probability sufficient to undermine
confidence in the outcome on the part of the reviewing court. It is a probability assessed by considering
the evidence in question under the totality of the relevant circumstances and
not in isolation or in the abstract.
[Citation.]†(
907-908.) “A showing by the [defendant]
of the favorableness and materiality of any evidence not disclosed by the
prosecution necessarily establishes at one stroke what in other contexts are separately
considered under the rubrics of ‘error’ and ‘prejudice.’ For, here, there is no ‘error’ unless there
is also ‘prejudice.’ [Citations.] [¶] It
follows that harmless-error analysis under Chapman
v. California (1967) 386 U.S. 18, 24, with its standard of ‘harmless beyond
a reasonable doubt,’ is not implicated.â€
(In re Sassounian (1995) 9
Cal.4th 535, 545, fn. 7.)
In light of
the testimony given by Wong and Wood at trial, we question whether there was
any suppression for Brady
purposes. (See People v. Verdugo (2010) 50 Cal.4th 263, 281.) Their testimony was not favorable to
defendant, and he fails to explain how earlier disclosure would have helped him. It is not enough to speculate that he might
have been able to impeach the witnesses or obtain his own experts to dispute
their assertions. Accordingly, defendant
has failed to establish that any delay or purported misconduct concerning the
prosecution’s experts violated his right to due process. (See People
v. Osband (1996) 13 Cal.4th 622, 665.)
We turn to
the statutory scheme that governs discovery in criminal cases in
California: section 1054 et seq. The purpose of this scheme “is to promote
ascertainment of truth by liberal discovery rules which allow parties to obtain
information in order to prepare their cases and reduce the chance of surprise
at trial. [Citation.]†(People
v. Jackson (1993) 15 Cal.App.4th 1197, 1201.)
If the
information is in possession of the prosecutor, or if he or she knows it to be
in possession of an investigating agency, the prosecutor must disclose to the
defense the names and addresses of individuals the prosecutor intends to call
as witnesses at trial (§ 1054.1, subd. (a)), as well as “[r]elevant
written or recorded statements of witnesses or reports of the statements of
witnesses whom the prosecutor intends to call at the trial, including any
reports or statements of experts made in conjunction with the case, including
the results of physical … examinations .…â€
(Id., subd. (f).) Absent circumstances not relevant here,
disclosure must be made at least 30 days before trial or, if the information
comes into possession of the prosecutor within 30 days of trial, immediately. (§ 1054.7.)
The record
does not support defendant’s claim of a discovery violation with respect to
Wong. The prosecutor explained the
situation, and there is nothing before us to refute her claim that she made
disclosure to defense counsel as soon as she had something to disclose. That Blake obviously was aware she had been
examined by Wong several months before trial does not mean the prosecutor was
required to obtain that information from the victim. (See § 1054.1
[prosecutor shall disclose specified information if in possession of prosecuting attorney or known by him or her to
be in possession of investigating
agencies].) Since defendant has
failed to establish a violation of section 1054.7 with respect to Wong (see
1349, 1354), it follows he has failed to establish prosecutorial misconduct in
that regard.
The record
is less clear with respect to Wood.
Assuming the prosecutor violated the statutory scheme, however, it does
not necessarily follow that she used “deceptive or reprehensible methods to
attempt to persuade either the trial court or the jury,†as required in order
for us to find she committed misconduct.
(People v. Morales, supra, 25
Cal.4th at p. 44.) “[D]efense
counsel’s failure to timely seek appropriate sanctions for prosecutorial misconduct, or a continuance on grounds of unfair
surprise, is fatal to a direct claim of error on appeal. [Citations.]â€
(People v. Arias (1996) 13
Cal.4th 92, 151.) Moreover, “‘[i]t is
defendant’s burden to show that the failure to timely comply with any discovery
order is prejudicial, and that a continuance would not have cured the
harm.’ [Citation.] Defendant sought no continuance, and he made
no showing that his defense would have been different had he been provided
timely discovery of evidence of [Wood’s testimony].†(People
v. McKinnon (2011) 52 Cal.4th 610, 668-669.) Again, speculation that timely disclosure
would have allowed him effectively to investigate Wood’s expertise or
conclusions, or subpoena his own expert to rebut her testimony, is insufficient
to establish prejudice (see People v.
Verdugo, supra, 50 Cal.4th at pp. 281-282), and begs the question why
defendant did not accept the trial court’s multiple offers of at least a short
continuance (see People v. Robbins (1988)
45 Cal.3d 867, 884 [usual remedy for noncompliance with discovery order is
continuance], superseded by statute on another ground as stated in
387, fn. 13).
title="">[16]
In a
related argument, defendant contends the trial court erred by refusing to
instruct the jury with CALCRIM No. 306 as a remedy for the prosecutor’s alleged
discovery violations.
name="_ftnref17" title="">[17] Even though CALCRIM No. 306 appears to have
resolved some of the problems that plagued CALJIC No. 2.28 (see
483-484 & fn. 6; People v. Riggs (2008)
44 Cal.4th 248, 306-307; People v. Lawson
(2005) 131 Cal.App.4th 1242, 1247-1249; People
v. Bell (2004) 118 Cal.App.4th 249, 254-256), we conclude the trial court
did not err by refusing to give CALCRIM No. 306.
Upon a
showing that a party has not complied with section 1054.1 and that the moving
party has complied with informal discovery procedures (a point not in dispute
here), “a court may make any order necessary to enforce the provisions of this
chapter, including, but not limited to, immediate disclosure, contempt
proceedings, delaying or prohibiting the testimony of a witness or the
presentation of real evidence, continuance of the matter, or any other lawful
order. Further, the court may advise the
jury of any failure or refusal to disclose and of any untimely
disclosure.†(§ 1054.5, subd.
(b).) The court may prohibit the
testimony of a witness “only if all other sanctions have been exhausted.†(Id.,
subd. (c).)
“We
generally review a trial court’s ruling on matters regarding discovery under an
abuse of discretion standard.
[Citation.] In particular, ‘a
trial court may, in the exercise of its discretion, “consider a wide range of
sanctions†in response to the prosecution’s violation of a discovery
order.’ [Citation.]†(People
v. Ayala (2000) 23 Cal.4th 225, 299.)
“[D]iscretion is abused whenever the court exceeds the bounds of reason,
all of the circumstances being considered.
[Citations.]†(
72.)
Here, we
find no record support for any suggestion that delayed disclosure — if there
was any — was willful or done to obtain a tactical advantage. (See People
v. Jackson, supra, 15 Cal.App.4th at p. 1203.) Defendant has failed to show the
accommodations offered by the trial court — a short continuance and Evidence
Code section 402 hearings — were inadequate, under the circumstances, to
ensure he received a fair trial. (See
1161; People v. Bowles (2011) 198
Cal.App.4th 318, 326.) Indeed, following
the Evidence Code section 402 hearings, defense counsel was able to obtain
rulings limiting or excluding altogether testimony with which other experts
might reasonably have been expected to disagree (for example, Wood’s testimony
concerning how much pressure would cause loss of consciousness during
strangulation, and Wong’s opinion concerning whether the injury to Blake’s eye
was caused by strangulation). Also, when
the People’s experts testified, defense counsel did not ask for time to prepare
for cross-examination. (See
1004, 1017, disapproved on another ground in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.) Under the circumstances, defendant has failed
to establish the trial court abused its discretion by not imposing the
requested instructional sanction.
to Control Witness
Defendant
next contends the prosecutor committed misconduct by failing to control the
conduct of her witness. He says this
resulted in a violation of the trial court’s in limine ruling.
1. Background
Defendant
moved, in limine, to exclude any evidence of his prior convictions. The trial court granted the motion as to the
prosecutor’s case in chief and bifurcated the trial on the prior conviction
enhancement allegations. The court
further ordered both counsel to advise their witnesses of the court’s rulings
on the in limine motions.
During
direct examination, the prosecutor questioned Blake about the deterioration of
Blake and defendant’s marriage. This
took place:
“Q. Were you still happy and in love at that time
in your marriage?
“A. I won’t say ‘no, I’m not happy.’ I was stressed, yes.
“Q. Why were you stressed?
“A. He was gone most of the time, out late at
night, not bringing home money.
controlled substance --
“[DEFENSE
COUNSEL]: I’ll object. Lack of foundation. Move to strike.
“THE
COURT: Sustain that -- all the answer
exception of the --
“BY [THE PROSECUTOR]:
“Q. Without --
“THE
COURT: Just a second. With the exception of the arrested for 2008,
that will be stricken after.
“BY [THE PROSECUTOR]:
“Q. Now, without exactly explaining why, but in
2008 is that when you started having troubles in your marriage?
“A. Yes.
[¶] … [¶]
“Q. Eventually, did you ever get frustrated
enough that you wanted to get a divorce?
“A. Yes.
“Q. About when was that?
“A. It was in December of 2009. I was offered a job in Arizona. I took that position. I thought my husband, at the time, was going
to be willing to transfer, which he was.
When I called probation,
because I --
“[DEFENSE
COUNSEL]: Objection. I’ll ask to approach. [¶] … [¶]
“THE
COURT: All right. Let’s have a sidebar.
“(Sidebar
discussion held.)
“THE
COURT: Okay. I will sustain and strike that last answer,
and you may continue.
“BY [THE PROSECUTOR]:
“Q. For now, let’s just switch to a different
subject matter. [¶] Where did you live with the defendant?â€
The next morning,
when defense counsel was placing on the record his complaints about late
disclosure, he mentioned that the prosecutor was supposed to tell her witnesses
about the in limine rulings, yet the first witness she called mentioned
defendant’s arrest for drugs, in violation of one of the trial court’s rulings.
As we previously described, defense
counsel claimed the prosecutor’s actions “border[ed] on prosecutorial
misconduct.†The prosecutor responded:
“As far
as his motions in limine, I have done my best to speak with all of the
witnesses that I needed to and made them aware of things as soon as I possibly
can. You know with [Blake], I have made
it known that at this point she needs to come up with a different way of
describing the events that happened between her and her husband .… And so … I think she understands the
seriousness. It is just that for a woman
who’s trying to explain why they are having problems in their marriage, you
know, and this is not a comfortable situation for her to be in .… This is very uncomfortable and difficult for
her. So I can’t -- I don’t know why she
said what she did. But those are the
reasons why they were having problems and I think that’s just why they happened
the way that it did.â€
2. Analysis
We assume,
for the sake of discussion, that defendant preserved this claim for appeal,
despite the fact he did not assign the incident as prosecutorial misconduct at
trial. (See People v. Leonard (2007) 40 Cal.4th 1370, 1405.) “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.]†(
839.) This is so whether the prosecutor
acts intentionally or not. (
Similarly, “‘[a] prosecutor has the duty to guard against statements by
his witnesses containing inadmissible evidence.
[Citations.] If the prosecutor
believes a witness may give an inadmissible answer during his examination, he
must warn the witness to refrain from making such a statement.’ [Citation.]â€
(People v. Leonard, supra, 40
Cal.4th at p. 1406.)
The record
on appeal does not show the prosecutor had reason to believe Blake might answer
as she did, or what, if anything, the prosecutor said to Blake on the subject
before Blake testified. Accordingly,
there is no evidence the prosecutor violated her duty to guard against
statements by Blake containing inadmissible evidence. (See People
v. Leonard, supra, 40 Cal.4th at p. 1406.)
In any
event, assuming the prosecutor violated either or both of the foregoing
principles, “it cannot be said that the prosecutor’s asking of [two questions]
… constituted a pattern of conduct so egregious that it rendered the trial
fundamentally unfair in denial of defendant’s federal constitutional right to
due process of law. [Citation.] Moreover, even assuming the prosecutor’s
action amounted to misconduct under state law, no prejudice appears.†(People
v. Cox (2003) 30 Cal.4th 916, 952, disapproved on another ground in
421, fn. 22.) The incident was an
isolated one. The questions asked do not
suggest the prosecutor engaged in a deliberate attempt to put inadmissible and
prejudicial evidence before the jury.
(Contrast People v. Bell (1989)
49 Cal.3d 502, 531-532.) The trial court
promptly sustained the defense objections and struck the offending
testimony. (See People v. Lopez (2013) 56 Cal.4th 1028, 1073; People v. Whalen (2013) 56
Cal.4th 1, 62.)
Defense Function with Confusing Jury
Defendant
complains that, during her final summation, the prosecutor improperly equated
the defense function with confusing the jury, while equating the prosecution’s
function with seeking the truth. It
appears he also claims the prosecutor committed misconduct by making personal
attacks on the integrity of defense counsel.
1. Background
At the
outset of his argument to the jury, defense counsel stated:
“Right
now this is the last chance I will have to talk to you and give you my
summation of the case. And there are a
lot of things about this case that are troublesome to everybody that gets
involved with it including the prosecution.
You know, as you look at their case this is a situation that goes back
to July of last year, that’s eight months ago.
Eight months ago. And what you
saw here at trial, you know, they presented the poor witness, Ms. Blake, the
brother. And what you will find with the
brother is that he entered the picture from the e-mail here on January 24th at
6:09. So one of the things, these last
minute type witnesses that came out of the woodwork. The doctor -- and when he took the stand up
there and I asked him when did you send this [sic] medical records to the People.
Was the day before, his office faxed it the day before. This case goes way back.
“And
then because the case is so shallow, so shallow and not a lot of substance,
they go get an expert from law enforcement that’s [sic] going to introduce you to strangulation. And it is because, you know, we hear things
like the Boston strangler. And it is
supposed to paint the facts of this case like he is this strangler. And then you heard many times saying it is
not choking, it is strangulation. And so
it is a tough case that came together here at the last minute.
“But we
don’t really talk -- I didn’t hear a lot of talk on their presentation about
the actual facts of the case.…â€
In response,
the prosecutor observed the People were being accused of having a weak case and
of grabbing at anything they could, and of not talking about the facts. She argued that she did indeed speak about
those things the jury would use to analyze credibility of witnesses, with
credibility being the ultimate issue in the case. She stated that the evidence fully supported
the charges in the case. She continued:
“So why
in the world is the defense bringing out all of these other things and talking
about throwing out late discovery, evidence that’s popping up at the last
minute .…
“I
spoke with you specifically about speculation.
Things that aren’t in evidence.…
You cannot speculate.
“Now it
doesn’t matter do you know when this started, do you know when exactly the case
started. We know the date, but you don’t
know when the criminal case started, it is not in evidence. As far as when things popped up or if it is
last or anything like that, that’s not for you to decide, that is not your
duty. And you cannot speculate as to whether
that’s bad or not.
“Why is
he trying to get you to?
to be something wrong with the case because he is saying things popped up at
the last minute. That’s not -- that’s
not part of the evidence. Doesn’t
matter. The evidence is the facts that
happened that day. And what is
presented. And the different things that
you have in your hand.
[¶] … [¶]
“Now,
how about the -- so the late discovery, you cannot speculate as to any of it,
whether it is or not. Medical records,
when they are given. You know when this
e-mail comes really is not at issue.
and to try and get you to be confused about what’s really going on.†(Italics added.)
The
prosecutor then discussed the testimony of the officer who responded to the
hospital, and interviewed and took photographs of Blake. She stated:
“He wrote his report, he was consistent with it, that
helped him remember things. But with
every single investigation out of the how many reports he has done, even in
just the last year, is he going to remember every detail. Obviously not. Because that’s what we pointed out. That’s all we were doing. [Defense
counsel] wants you to be lost and confused and misled by the fact and act like
either [Blake] told him the truth or she didn’t, and one or the other is a
lie. That’s
misleading you. And that’s what the
defense is doing.
“They
know that the case is there. They know
what the facts are. They are just trying to get you confused or to get caught up on
something that doesn’t really matter because if we can get them confused, if we
can make them think that, you know, there’s this issue about an officer, the
issue about the -- I mean, there is a lot of things, you know, discovery.… All of
that is just to try and confuse you and get you to think that let’s
speculate and that’s reasonable doubt.â€
(Italics added.)
The
prosecutor further told the jury:
“And I
can’t just come up during closing argument and say look, the urination, loss of
body control, the hemorrhaging in the eyes, all of that stuff is consistent and
helps prove and support she lost consciousness.
I can’t say that without a domestic violence expert or, sorry, a
strangulation expert that tells us that.
Because that is something that you need to learn through the
evidence. It has to be based on the
evidence. I didn’t bring her in to boost
my case. I brought her in so that we
know this is strangulation, this is the definition. When you look, this is what the symptoms you
look for, this is what can happen. It is
just to assist with that. Otherwise I
can’t make those arguments to you.
to mislead you. He raised all of that
smoke. Clear up those muddy waters.
“It is
like, you know, when you throw spaghetti on the wall and hope what sticks. You can’t have it every way they want
it. It is one way. And the only way is the evidence does show
what happened.†(Italics added.)
2. Analysis
Defendant
did not object to any of the italicized remarks, about which he now
complains. As a result, he has forfeited
his claim they constituted misconduct. (
People v. Wash (1993) 6 Cal.4th 215,
265.)
Defendant says
an objection would have been futile, because (1) he objected to the late
discovery and the trial court refused his request to instruct the jury thereon,
and (2) the prosecutor’s repeated arguments that the defense function was
to confuse the jury constituted a pattern of misconduct that excused an
objection to each individual instance of misconduct. We find no reason to excuse the lack of
objection. The trial court’s refusal to
sanction the prosecutor for late disclosure does not mean it would have been unreceptive
to an objection that the prosecutor was mounting an improper attack on defense
counsel. (See People v. Fuiava (2012) 53 Cal.4th 622, 680.)
disputed portions of the prosecutor’s argument were improper, a timely
objection to the first instance of such misconduct might well have prompted a
favorable ruling and prevented repetition of such improper argument.†(People
v. Jones (1997) 15 Cal.4th 119, 181, overruled on another ground in
p. 823, fn. 1; see also People v.
Hughes (2002) 27 Cal.4th 287, 372.)
In any
event, we find no reasonable likelihood the jury construed or applied the
prosecutor’s remarks in an objectionable fashion. (See People
v. Gonzales and Soliz, supra, 52
Cal.4th at p. 305.) “It is
misconduct when a prosecutor in closing argument ‘denigrat[es] counsel instead
of the evidence. Personal attacks on
opposing counsel are improper and irrelevant to the issues.’ [Citation.]â€
(People v. Welch,
Thus, “[i]f there is a reasonable likelihood that the jury would
understand the prosecutor’s statements as an assertion that defense counsel
sought to deceive the jury, misconduct would be established. [Citation.]â€
(People v. Cummings (1993) 4
Cal.4th 1233, 1302.) However, “[i]t is
not misconduct for a prosecutor to argue that the defense is attempting to
confuse the jury. [Citation.]†(People
v. Kennedy (2005) 36 Cal.4th 595, 626-627, disapproved on another ground in
People v. Williams (2010) 49 Cal.4th
405, 459; see, e.g., People v. Cunningham
(2001) 25 Cal.4th 926, 1002 [claim of misconduct forfeited by failure to
object, and no reasonable likelihood jury improperly influenced by prosecutor’s
statement that defense counsel’s job was to “‘put up smoke, red herrings,’â€
while prosecutor’s job was to “‘straighten that out and show [jury] where the
truth lies’â€]; People v. Medina (1995)
11 Cal.4th 694, 759 [comment that “‘any experienced defense attorney can twist
a little, poke a little, try to draw some speculation, try to get [jurors] to
buy something’†not misconduct]; People
v. Marquez (1992) 1 Cal.4th 553, 575-576 [referring to “‘heavy, heavy
smokescreen that has been laid down [by the defense] to hide the truth’†proper
argument against jury’s acceptance of defense presented]; People v. Bell, supra, 49 Cal.3d at p. 538 [comments that it
was defense counsel’s job to “‘throw sand in [jurors’] eyes’†and that defense
counsel wanted to confuse jurors not misconduct to extent they could be
understood as reminder to jury not to be distracted from relevant evidence and
inferences that might logically be drawn therefrom].)
When we
consider the prosecutor’s complained-of remarks in context both of defense
counsel’s argument (see People v. Parson (2008)
44 Cal.4th 332, 364; People v. Young (2005)
34 Cal.4th 1149, 1189) and the prosecutor’s comments as a whole (see
714), there is no reasonable likelihood jurors understood them to suggest the
function of the defense was to confuse the jury while the function of the
prosecution was to seek the truth.
Rather, the context was such that jurors would have understood the
prosecutor
| Description | Defendant Harold Wayne Blake, Jr., (defendant) stands convicted, following a jury trial, of willfully inflicting corporal injury on his spouse, during which he personally inflicted great bodily injury.[1] (Pen. Code,[2] §§ 273.5, subd. (a), 12022.7, subd. (e).) Following a bifurcated court trial, he was found to have suffered a prior conviction under the “Three Strikes†law. (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e).) His motion for a new trial was denied, but his request to dismiss the prior strike conviction was granted. He was sentenced to a total of seven years in prison, and ordered to pay restitution and various fees, fines, and assessments. On appeal, he raises claims of prosecutorial misconduct. We affirm. |
| Rating |
