v. Hall
Filed 1/15/13 P. v. Hall CA6
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TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
>
THE PEOPLE, Plaintiff and Respondent, v. ROYNELL TERRY HALL, Defendant and Appellant. | H037200 (Santa Clara County Super. Ct. Nos. CC776986, CC898066) |
Defendant Roynell Terry Hall was
convicted by a jury of possession of
cocaine (Health & Saf. Code, § 11350, subd. (a)), transportation of
cocaine (id. § 11352, subd. (a)), and
two counts of possession of marijuana for
sale (id. § 11359). He was sentenced to six years eight months in
prison.
On appeal, Hall contends that his
conviction must be reversed because the prosecutor engaged in various acts of
misconduct which, individually or cumulatively, violated his
to object to the prosecutor’s actions, he claims his counsel was
ineffective. We disagree that the
prosecutor engaged in reversible misconduct or that his counsel was
ineffective. Moreover, to the extent
that there was any misconduct or ineffective assistance, we find that Hall was
not prejudiced. Accordingly, we shall
affirm the judgment.
I. Factual and Procedural Background
By
information filed October 28, 2008, Hall was
charged with possession of cocaine for sale (Health & Saf. Code, § 11351,
count 1); transportation of cocaine (id.
§ 11352, subd. (a), count 2); two counts of possession
of marijuana for sale (id. §
11359, counts 3 & 6); resisting arrest (Pen. Code, § 148, subd. (a)(1),
count 4); and escape after lawful arrest (id.
§ 836.6, subd. (b), count 5). The
information also alleged that Hall had suffered a prior prison conviction (
convictions (Health & Saf. Code, § 11370, subds. (a) & (c)); and had
offended while on bail (Pen. Code, § 12022.1).
Before trial, the prosecutor dismissed count 5 and renumbered count 6 as
the new count 5.
A. July
13, 2007
On
June 28 and July
3, 2007, San Jose Police Officer Omar
Prieto conducted surveillance in the parking lot of a Kentucky Fried Chicken
restaurant. Prieto observed Hall parked
in the lot on both occasions. Based on his
training and experience, Prieto concluded that Hall was engaged in narcotics
transactions while in the parking lot because of the following
observations: (1) vehicles would drive
into the lot and park near or next to Hall’s vehicle; (2) occupants of the
second vehicle would exit their vehicles and get into the passenger side of Hall’s
vehicle; (3) after two or three minutes, the person would get out of Hall’s
vehicle, return to their own vehicle and drive away; and (4) neither Hall nor
the other people who got into his vehicle ever entered the restaurant.
At
approximately 6:00 p.m. on July 13, 2007, Prieto and his partner, Officer
Michael Roberson, again conducted a surveillance operation in the Kentucky
Fried Chicken parking lot. They saw a
Camaro enter the lot and park.
Approximately 20 minutes later, Hall drove into the lot and the driver
of the Camaro, subsequently identified as Alejandro Bermudez, got into Hall’s
vehicle.
When
Prieto and Roberson walked up to Hall’s vehicle, they saw an open baggie of
marijuana on Hall’s lap, a digital scale on the center console and a $20 bill
on the dashboard near Hall. Hall was in
the process of weighing some marijuana.
As Roberson stood next to Hall on the driver’s side, Hall looked up at
him and said, “This isn’t possession for sales.â€
Roberson
and Prieto pulled Hall and Bermudez out of the vehicle. Bermudez was handcuffed and sat on the
curb. As Roberson attempted to restrain
Hall, he flailed his arms, trying to get away, but was handcuffed by Roberson
and Prieto.
Prieto
asked Hall for his identification and Hall said it was in the center
console. When Prieto opened the console,
he found Hall’s ID sitting next to a bag which was later determined to hold
13.78 grams of cocaine, net weight.
Hall, though still handcuffed, stood up and ran down the street. Roberson gave chase and caught him about a
quarter of a block away. Roberson placed
Hall under arrest and, in the course of a pat search, found $6,466 in cash on
his person.
At
the police station, Hall waived his Miranda
rights. He told Prieto he was a low
level drug dealer, and that the drugs in the car belonged to him, not
Bermudez. Hall confirmed that Bermudez
was going to buy marijuana from him, but claimed that the money that was found
on him was supposed to cover college tuition for a family member. The interview was not recorded and Prieto did
not put Hall’s admissions in quotes when he subsequently wrote his report.
B. February 18, 2008 arrest
On
February 18, 2008, San Jose Police Officer Mary Cayori was dispatched to a
report of vandalism at a gas station. When she arrived, she saw Hall standing next
to his vehicle, near a broken gas pump.
Cayori smelled marijuana on Hall and asked for his identification. Hall said Cayori could look in his vehicle
for his driver’s license. As she entered
the vehicle, Cayori smelled marijuana and saw a large plastic bag of marijuana,
later determined to have a net weight of 210 grams, in the back seat. Two cell phones, which were ringing, were on
the front passenger seat.
During
the 40 minutes it took for Cayori to interview Hall and complete her
investigation, the phones rang approximately 24 times. While booking the phones into evidence, she
observed two text messages on them, one which read. “What’s up with the dank?â€
and the other which read, “Can you front me a sack?†Cayori believed these text messages
referenced marijuana sales. The phones
also contained photos of Hall holding up bags of what appeared to be marijuana.
When
Hall was searched at the police station, he was carrying $1,267 in cash, mostly
in small bills. Based on her training
and experience, Cayori surmised the marijuana in Hall’s vehicle was intended
for sale. On cross-examination, Cayori
conceded the quantity of marijuana seized could be consistent with personal
use, as well as sales. She also said no
drug packaging materials, scales or pay/owe sheets were found in Hall’s
vehicle.
C. Prior offenses
Pursuant
to a pretrial in limine motion, the trial court allowed the prosecution to
introduce evidence of Hall’s 1997 and 2003 convictions of possession of
marijuana for sale in order to establish that he had knowledge the substance he
possessed was marijuana and that he had the intent to sell it.
offenses are described below.
On
January 14, 1996, San Jose Police Officer Christina Lacap made a routine stop
of a vehicle driven by Hall. Hall got
out of the vehicle and consented to a search of the vehicle. Lacap found a marijuana cigarette in the
ashtray and two large bags of marijuana hidden underneath the dashboard on the
driver’s side of the vehicle. Lacap
arrested Hall and, when she searched him, found $177 in small bills, rolling
papers and 36 smaller zip lock bags commonly used to package marijuana for
sale.
On
July 27, 2002, Milpitas Police Officer Lap La responded to a call at the
Courtyard Marriott Hotel. Inside a room
registered under Hall’s name, La found 10 large bags of marijuana, weighing a
total of five pounds, hidden under the sofa and the bed. She also found two digital scales, a
calculator and packaging materials.
D. Defense case
Hall
testified and, on direct examination, admitted the two prior convictions for
possession of marijuana for sale in 1997 and 2003. He further admitted three prior convictions
for giving false information to a police officer (Pen. Code, § 148.9) and one
prior conviction for petty theft (id.
§ 484).
Hall
said Bermudez was a friend and a former neighbor with whom he regularly smoked
marijuana, but Bermudez never paid him for drugs. On July 13, 2007, Bermudez called him and
wanted to show off his new vehicle, so Hall told Bermudez to meet him at the
Kentucky Fried Chicken restaurant parking lot.
Hall went to that restaurant several times a week because he loved
chicken, but sometimes he went and did not buy anything. He liked the parking lot there because it is
“like a smoke spot. People go there to
smoke blunts . . . . [¶] Lots of high schoolers [sic] go there to smoke a blunt.
It’s like a back part, if you go back, you kick back and smoke a blunt
in peace.â€
Hall
smoked marijuana frequently because he suffered residual pain from injuries
sustained in a car crash in 2002. He
used a scale to weigh out the marijuana he smoked to ensure he did not “go
overboard.†When he was arrested on July
13, 2007, he tried to run away because he was on parole and knew he would be in
trouble for having drugs.
Hall
denied knowing anything about the cocaine that was found in the center console
until after he was arraigned and denied ever telling Prieto he was a
small-scale drug dealer. Hall’s sister’s
boyfriend testified that the cocaine belonged to him and Hall’s sister. Some time before July 13, 2007, they had
borrowed the vehicle from Hall, bought cocaine and put it in the center
console. While in the vehicle, they got
in an argument and forgot all about the cocaine.
As
for the $6,466 found on him, Hall explained the money belonged to his mother
and he was supposed to get a money order with it to pay a family member’s
college tuition. At the time, he was
working for Choices for Children, where he made $10,000 over several
months.
With
respect to his February 18, 2008 arrest, Hall insisted that the marijuana
Officer Cayori found in his vehicle was self-grown for his personal use. The two cell phones were ringing all the time
because his mother called him frequently.
He had no idea what the text messages on his phones, referring to “dankâ€
and “front[ing] me a sack,†meant.
E. Verdicts and sentencing
On
July 16, 2009, Hall was acquitted of possessing cocaine for sale (count 1) and
found guilty of resisting arrest (count 4).
The jury hung on the remaining counts, as well as the lesser included
offense of possession of cocaine in count 1.
Following
a retrial, the jury found Hall guilty on counts 1, 2, 3 and 5.
years eight months in prison.
II. Discussion
A. Prosecutorial misconduct
Hall argues the prosecutor engaged
in misconduct in several ways: (1) failing to inform the court that an exhibit
offered into evidence contained prejudicial prior arrest charges which the
court had not ruled were admissible; (2) cross-examining Hall about a pending
felony sex case the court had ruled inadmissible during a pretrial hearing; (3)
arguing Hall’s priors showed a propensity for selling drugs; (4) arguing facts
not in evidence, such as that Hall was selling drugs to high school students;
and (5) trivializing the prosecutor’s burden of proof. These acts, individually or cumulatively,
constitute reversible misconduct.
legal standards
misconduct
“A prosecutor commits misconduct
when his or her conduct either infects the trial with such unfairness as to
render the subsequent conviction a denial of due process, or involves deceptive
or reprehensible methods employed to persuade the trier of fact.†(People
v. Avila (2009) 46 Cal.4th 680, 711 (Avila).) A finding of misconduct does not require a
determination that the prosecutor acted in bad faith or with wrongful intent. (People
v. Crew (2003) 31 Cal.4th 822, 839.)
To preserve a claim of prosecutorial misconduct for appeal, a defendant
must object and seek an admonition if an objection and admonition would have
cured the harm. (People v. Hill (1998) 17 Cal.4th 800, 820 (Hill).) Furthermore,
“[r]eversal of a judgment of conviction based on prosecutorial misconduct is
called for only when, after reviewing the totality of the evidence, we can
determine it is reasonably probable that a result more favorable to a defendant
would have occurred absent the misconduct.â€
(People v. Castillo (2008) 168
Cal.App.4th 364, 386.)
When a claim of misconduct focuses
on comments the prosecutor made before the jury, the question is whether there
is a reasonable likelihood the jury construed or applied any of the
complained-of remarks in an objectionable fashion. (People v. Samayoa (1997) 15 Cal.4th
795, 841.) We must place the challenged
statement in context and view the argument as a whole. (People v. Cole (2004) 33 Cal.4th
1158, 1203; People v. Lopez (2008) 42 Cal.4th 960, 970-971.)
“[A] prosecutor is free to give his
[or her] opinion on the state of the evidence, and in arguing [the] case to the
jury, has wide latitude to comment on both its quality and the credibility of
witnesses.†(People v. Padilla (1995)
11 Cal.4th 891, 945, disapproved on other grounds in Hill, supra, 17 Cal.4th at p. 823, fn. 1; People v. Martinez (2010)
47 Cal.4th 911, 958 [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.â€].)
assistance of counsel
To prevail on an ineffective
assistance of counsel claim, a defendant must establish both that counsel’s
performance fell below an objective standard of reasonableness, and resultant
prejudice. (Strickland v. Washington (1984)
466 U.S. 668, 687; People v. Hernandez (2012) 53 Cal.4th 1095, 1105; People
v. Bradley (2012) 208 Cal.App.4th 64, 86-87.)
in limine rulings
Before trial, the prosecution filed
an in limine motion seeking to admit evidence of several of Hall’s prior
offenses. The trial court granted the
prosecution’s motion to admit, for impeachment purposes, evidence of Hall’s
three prior misdemeanor convictions for providing false information to a police
officer (Pen. Code, § 148.9), two prior convictions for possession of marijuana
for sale (Health & Saf. Code, § 11359) and one prior conviction for
misdemeanor theft (Pen. Code, § 484).
The court excluded Hall’s prior misdemeanor conviction for evading a
peace officer (Veh. Code, § 2800.1).
The trial court denied the prosecution’s motion to further impeach Hall
with two child sexual abuse charges which were then pending in San Mateo
County. (Pen. Code, §§ 261.5, 288, subd.
(c).) The trial court denied this
request on the ground the evidence was more prejudicial than probative, as well
as because Hall would be unable to respond to this evidence without potentially
incriminating himself in the San Mateo case.
The prosecution also successfully
moved in limine for permission to use Hall’s prior convictions for possession
of marijuana for sale for the purpose of proving his knowledge and intent to
sell marijuana in this case.
to pending felony case in San Mateo County
When Hall was on the witness stand,
the prosecutor impeached him with his prior convictions for lying to a police
officer and petty theft. She also asked
Hall: “You currently have a pending
felony non-drug related case in the county of San Mateo; correct?†Hall said he did, and defense counsel raised
no objection.
Hall argues that the prosecutor’s
question violated the in limine order, and sought to elicit inadmissible
evidence. Any objection or admonishment
would have been futile as it would have simply highlighted the information for
the jury.
Alternatively, Hall contends that if
the court determines that this claim is forfeited by virtue of defense counsel
failing to timely object, defense counsel was ineffective. There was no tactical reason for counsel not
to object to this question. The felony
charges were prejudicial and inflammatory and Hall had no way of explaining
them without possibly incriminating himself.
The People counter that the argument
is forfeited since defense counsel did not object to the question at
trial. Furthermore, the question was
consistent with the court’s ruling, as it made no reference to the nature of
the charges involved, i.e., sexual abuse of a child.
We agree that the claim is forfeited. “A defendant who fails to make a timely
objection or motion to strike evidence may not later claim that the admission
of the evidence was error [citations] or that the prosecutor committed
misconduct by adducing it.†(
924 (Abel).) The reason for this rule is simple. The trial court is in the best position to
hear and rule on objections to evidence.
Had Hall’s counsel raised an objection to the prosecutor’s question
prior to it being answered, the prosecutor could have responded to counsel’s
arguments and the trial court could have made an informed ruling. Even if Hall had inadvertently answered the
question as the objection was being made, the trial court could have immediately
admonished the jury to disregard his answer if the objection was sustained.
Assuming that the argument was not
forfeited, however, the claim fails. We
agree the question itself violated the letter, if not the spirit, of the trial
court’s in limine ruling. Though
sanitized to remove any reference to the nature of the charges, the question
was not explicitly permitted by the trial court. The trial court had previously denied the
prosecution’s motion to further impeach Hall with the felony child sex abuse
charges pending in San Mateo County. It
is true that the trial court’s ruling on this matter was based principally on
the inflammatory nature of the charges, but it was also based on the fact that Hall was the subject of a criminal
action in another jurisdiction and any
questions about that action would implicate his Fifth Amendment right against
self-incrimination. After the trial
court ruled that the prosecutor could not ask about the pending child sex abuse
case, the prosecutor did not follow up and ask if she could make a more generic
inquiry. Instead, she simply made the
more generic inquiry set forth above.
This was improper.
An improper question, however, does
not necessarily warrant reversal. We
must determine whether the violation infected the trial “with such unfairness
as to render the subsequent conviction a denial of due process, or involve[d]
deceptive or reprehensible methods employed to persuade the trier of
fact.†(Avila, supra, 46 Cal.4th
at p. 711.) It did not. By not referring to the inflammatory nature
of the charges, the prosecutor avoided the greatest danger recognized by the
trial court in its ruling, i.e., that the jury would be improperly predisposed
to convict Hall in this case because there was a separate child sex abuse case
pending against him. There was no follow
up on this line of inquiry, nor did the prosecutor reference it again in her
final arguments. Hall admitted a number
of prior convictions, so the fact that he was facing another criminal
proceeding in another jurisdiction would have had little impact on the jury’s
determination that he was guilty of the charges laid against him in the instant
case.
Even assuming the prosecutor’s
question constituted misconduct, it
did not so taint the trial with unfairness so as to violate Hall’s due process
rights, and there is no basis for Hall’s alternative argument that defense
counsel was ineffective for failing to object to the question asked. While the defense counsel perhaps reasonably
should have objected, there was no prejudice since the other evidence against
Hall was so compelling.
of Exhibit No. 9
While
conducting the direct examination of Officer La regarding the 2002 discovery of
marijuana in Hall’s hotel room, the prosecutor referred to a document labeled
“ID Sheet,†which was later admitted into evidence as exhibit No. 9, without
objection. The document, a certified
copy of a booking sheet, contained Hall’s name, photo, identifying file numbers,
and fingerprints. The document included
a table, reproduced below.
>
CODE | CIRC | SECTION | BAIL | F/M/I/C | COURT | WARRANT NO. |
HS | W | 11359 | F | 43470 | CC256972 | |
PC | P | 1203.2 | F | 43100 | 186968 | |
PC | 1 | 148(A) | M | 43470 | ||
PC | 1 | 148.9 | M | 43470 | ||
VC | 1 | 12500(A) | M | 43470 | ||
VC | W | 14601.1(A) | M | 43470 | CC245837 |
Hall argues that the
prosecutor committed misconduct by introducing this exhibit, which contained
inadmissible evidence of prior charges, specifically possession of marijuana
with intent to sell (Health & Saf. Code, § 11359), a felony probation
violation (Pen. Code, § 1203.2), misdemeanor obstructing a police officer (
falsely identifying oneself to a police officer (id. § 148.9), misdemeanor driving without a license (Veh. Code, §
12500, subd. (a)) and misdemeanor driving with a suspended driver’s license (
it was inadmissible, and failed to advise the court or defense counsel it
contained such inadmissible and prejudicial information.
Alternatively, in the event the court
finds this argument has been forfeited due to defense counsel’s failure to
object, Hall contends his counsel was ineffective. There was no tactical reason for not
objecting and, had the document not been admitted, the jury would likely have
reached a different verdict.
In response, the People argue Hall
has forfeited the argument because defense counsel failed to object to its
admission. Substantively, the People
further argue that the introduction of exhibit No. 9 does not constitute
misconduct because the document, on its face, does not set forth prejudicial
information. The table consists of
various letters and numbers, but there is no key to explain what those letters
and numbers mean, nor did the prosecutor make any reference to the exhibit or
explain any of the information contained therein. The prosecutor did not mislead the court or
defense counsel about the document in any way, nor did it provide the jury with
inaccurate or prejudicial information.
We agree Hall has forfeited this
argument on appeal. As noted above,
failing to timely object or move to strike particular evidence precludes a
defendant from later claiming evidentiary error or prosecutorial misconduct in
connection with its admission. (
Assuming however that the failure to
object did not amount to a forfeiture of the claim, we still find the admission
of exhibit No. 9 did not amount to reversible misconduct. While the exhibit included information outside
the scope of the trial court’s in limine ruling, i.e., the table of letters and
numbers which referred to various criminal charges brought against Hall in
2002, those letters and numbers were meaningless
without some further explanation. There was no key on the
document to disclose what they meant, nor did the prosecutor offer any guidance
on the subject. In fact, following its
admission into evidence, it was never referred to again. Consequently, even if the prosecutor
committed misconduct in seeking to admit the document, its admission into
evidence did not infect the trial “with such unfairness as to render the
subsequent conviction a denial of due process, or involve[] deceptive or
reprehensible methods employed to persuade the trier of fact.†(Avila,
supra, 46 Cal.4th at p. 711.)
Again assuming the prosecutor
committed misconduct, that misconduct did not so taint the trial with
unfairness so as to violate Hall’s due process rights, thus there is no basis
for Hall’s alternative argument that defense counsel was ineffective for failing
to object to the introduction of exhibit No. 9.
Given that the other evidence against Hall was so strong, it is unlikely
that the jury would have reached a different verdict had this exhibit not been
admitted.
in closing argument
to priors for nonapproved purposes
In her closing argument, the
prosecutor referred to Hall’s past convictions to establish: (1) his knowledge that he possessed
marijuana; and (2) his intent to sell marijuana. She argued, “[Hall] possessed marijuana with
the intent to sell. Not once, not twice,
but four times. It’s not a strange set
of coincidence [sic] that defendant
was found with marijuana with the intent to sell.†She described the circumstances of his prior
convictions and compared them with the circumstances in the instant case,
noting his behavior in this case was consistent with the expert testimony
describing marijuana sales. Later, the
prosecutor referred to Hall’s lack of credibility stating, “The fact is we know
he lies because he has a history of lying.
This marijuana dealer who has been convicted of selling drugs, has also
repeatedly provided false information to police officers.â€
The prosecutor also pointed out
“when Officer Roberson opened the door [to Hall’s vehicle], [Hall] knew he was
guilty and lied to the officer and immediately said, this isn’t possession for
sales. He knew what he was doing[,] . .
. [because] he was caught red handed and he knows the terminology because he
did it before.†Later in her argument,
the prosecutor referenced Hall’s prior convictions for marijuana sales to
support her contention that Hall had over $6,000 in small bills on his person
because he was selling drugs, not because he was employed with a child care
program.
Hall argues that the prosecutor
overstepped the boundaries established by the court and used his prior felony
convictions not just to show knowledge and intent, but to show he had a
propensity to commit crimes.
The People counter that the
prosecutor used Hall’s prior convictions for the limited purposes permitted by
the trial court, i.e., to show his knowledge and intent to sell marijuana.
Even if we were to agree with Hall
that the prosecutor’s argument crossed over the line established by the court’s
in limine order and improperly suggested that Hall’s prior convictions of
possession of marijuana for sale established his propensity to sell marijuana, the court’s instructions on the
limited use of Hall’s prior convictions were sufficient to cure any potential prejudice. Those instructions were given when the
evidence was first introduced, and at the close of evidence.
the statements of counsel are not evidence:
“Nothing that the attorneys say is evidence. In their opening statements and closing
remarks the attorneys discuss the case but their remarks are not
evidence.†It also instructed, “You must
decide . . . what the facts are. That’s
up to you and you alone to decide what happened based only on the evidence that’s
been presented to you in this trial and no other source.†The court’s instructions, not the
prosecution’s argument, are determinative (People v. Mayfield (1993) 5
Cal.4th 142, 179; People v. Stewart (2004) 33 Cal.4th 425, 499), and we presume the jurors
understood and followed those instructions.
(People v. Holt (1997) 15 Cal.4th 619, 662.) Thus, even if the prosecutor’s remarks had
been improper, given the instructions, the nature of the challenged comments,
and the evidence presented at trial, no prejudice resulted.
to high school students
Also in closing, the prosecutor
stated the following.
“[Hall] tells you [the Kentucky
Fried Chicken parking lot] is a great smoke spot with lots of high school
kids. Why would someone who claims to
smoke three to four blunts a day by himself at his house feel the need to go
into this parking lot where he knows there’s a bunch of other users of
marijuana, a bunch of other high school kids that use marijuana[,] except for
the fact that he wants to go there to sell it to them[?] [¶] These are his
customers. He was caught in the middle
of a transaction consistent with what the officer saw, with [what] Mr. Bermudez
told you, the money on his lap, the marijuana on his lap, the scale on the
center console, the quick let’s hop in the car, quick exchange before the
officers interrupted. The amount of
marijuana that was found, the digital scale, the money, the $6,466 which isn’t
disputed consisting of lots of 20’s, lots of 10’s, lots of 5’s.â€
Hall argues that the prosecutor
improperly raised the idea that he went to the Kentucky Fried Chicken parking
lot in order to sell drugs to students.
The People contend that the
prosecutor’s argument was based on a logical inference. Hall himself was the one who testified that
high school students liked to go to the Kentucky Fried Chicken parking lot and
smoke marijuana.
A prosecutor engages in misconduct
by misstating facts or referring to facts not in evidence. (People v. Coffman and Marlow (2004)
34 Cal.4th 1, 95; People v. Ellison (2011) 196 Cal.App.4th 1342,
1353.) However, he or she “enjoys wide
latitude in commenting on the evidence, including urging the jury to make
reasonable inferences and deductions therefrom.†(People v. Coffman and Marlow, supra, at p. 95; People
v. Ellison, supra, at
p. 1353.)
In this case, it was Hall who
testified that the Kentucky Fried Chicken parking lot was not just a good
location to go to smoke marijuana, but that it was frequented by high school
students for that same purpose. The
prosecutor’s suggestion that Hall himself went to the parking lot because there
were a lot of potential customers there, including the marijuana-smoking high
school students Hall spoke about, is a reasonable deduction based on the evidence. Hall cannot complain that the prosecutor, in
her argument, connected the dots between:
(1) the presence of lots of high school students smoking marijuana in a
particular parking lot; and (2) Hall’s presence in that same parking lot with
lots of cash in small denominations, an open bag of marijuana and a digital
scale.
regarding reasonable doubt
In addressing the concept of
reasonable doubt, the prosecutor made the following argument.
“If somebody came in through those
doors dressed in a black ski mask[,] completely black sweatshirt, black
pants[,] and came and shot the deputy, ran through that door, was caught two
minutes later at the metal detector with blood spatters on his clothing, he too
has a right to a jury trial. Even though
he was found with the murder weapon, [and] there [are] numerous eye
witnesses. He’s found at the scene. He too has a right to a jury trial. [¶] Just
because you’re here doesn’t mean there is [a] reasonable doubt.â€
Hall contends this argument was improper
as it trivialized the prosecution’s burden of proof, implying that the trial
itself was a mere constitutional formality since Hall was so obviously
guilty.
The People counter that the argument
was akin to that of the commonly-used example involving Jack Ruby shooting Lee
Harvey Oswald, broadcast on national television. This is an accepted means of explaining the
burden of proof and a defendant’s constitutional right to a jury trial even
when it appears there can be no reasonable doubt.
We agree that the prosecutor’s
hypothetical was proper, if perhaps an extreme example, and did not amount to
prosecutorial misconduct. Examining the
prosecutor’s remarks in the context of her argument, as we must, we see no likelihood
the jury would construe them in the way Hall suggests. (People v. Cole, supra, 33 Cal.4th at p. 1203.) The example was given following the
prosecutor’s review of all the evidence supporting the prosecution’s
case-in-chief, “with the evident aim of demonstrating [s]he had succeeded in
proving defendant guilty beyond a reasonable doubt.†(People
v. Marshall (1996) 13 Cal.4th 799, 832.)
Furthermore the court instructed the
jury on the reasonable doubt standard of proof, as well as on the presumption
of innocence. “We presume that jurors
treat the court’s instructions as a statement of the law by a judge, and the
prosecutor’s comments as words spoken by an advocate in an attempt to
persuade.†(People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8; see also
372.)
error
A claim of cumulative error is in
essence a due process claim and is often presented as such (see, e.g., People
v. Rogers (2006) 39 Cal.4th 826, 911).
“The ‘litmus test’ for cumulative error ‘is whether defendant received
due process and a fair trial.’ †(People
v. Cuccia (2002) 97 Cal.App.4th 785, 795.)
“ ‘[A] series of trial errors,
though independently harmless, may in some circumstances rise by accretion to
the level of reversible and prejudicial error.’
[Citation.] The few errors that
occurred during defendant’s trial were harmless, whether considered
individually or collectively. Defendant
was entitled to a fair trial but not a perfect one.†(People v. Cunningham (2001) 25
Cal.4th 926, 1009.) For the reasons set
forth above, we find that, to the extent there was any prosecutorial
misconduct, that misconduct did not so infect the trial as to render it
unfair. We deny this final claim.
III. Disposition
The
judgment is affirmed.
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.
name="_ftn1" title="">[1] Miranda v. Arizona (1966)
384 U.S. 436.
name="_ftn2" title="">[2] Before this testimony was introduced at trial, the jury was
admonished the evidence could be used only for those limited purposes.
