P. v. Maldonado

Filed 9/27/07 P. v. Maldonado CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Affirmed.

Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Marvin E. Mizell, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted defendant of second degree robbery (Pen. Code, 211), while using a firearm (Pen. Code, 12022.53, subd. (b)) and evading a police officer. (Veh. Code, 2800.2, subd. (a).) He was sentenced to prison for 13 years and appeals, claiming the trial court erred in refusing to instruct the jury or denying his motions for mistrial or a new trial, there was insufficient evidence to support the gun use finding and his trial counsel was incompetent. We reject his contentions and affirm.

Facts

On April 1, 2005, defendant entered a bank and approached the manager near her desk, some distance from the teller counter, where the money was. After defendant demanded money and threatened to shoot people, the manager called her assistant and had her put money in a bag, which defendant took out of the bank. More facts will be disclosed while discussing the issues presented.

Issues and Discussion

1. Refusal to Instruct and Denial of Motions for Mistrial and New Trial

Late in voir dire the prosecutor said,

[T]he presumption of innocence . . . says . . . that every defendant, regardless of the evidence that the D.A. has against them, gets the presumption of innocence. [L]et me give you . . . an example of it. [T]he bailiff . . . is a big Red Sox fan. Im a Yankee fan. Sometimes we argue about baseball. [] [L]ets make believe that [the bailiff] . . . starts haggling me [about the Yankees]. . . .  I really get upset. And in front of everybody in the jury box, and [the court reporter and clerk], in front of [the j]udge, in front of everybody in the audience, I . . . punch [the bailiff] in the nose [and] break his nose.^[1][]  . . .  [] Lets say I go to trial for my assault and battery on [the bailiff]. At my trial, at this very stage, I would have the same presumption of innocence that [defendant] has before you, even though all 14 of you witnessed the assault, [the j]udge witnessed the assault and everybody else. Does everyone understand that?

The following day, defendant brought a motion for mistrial based on these comments, which the trial court considered as a motion to dismiss the panel, because jeopardy had not yet attached. The court denied the motion. Defendant then asked that the prospective jurors be instructed that some information they may have received . . . about reasonable doubt may be erroneous. They should just look at the instruction provided by the Court. The trial court noted that it had already given the prospective jurors part of the standard instruction on reasonable doubt,^[2]which it said it would repeat during the pretrial admonition.^[3] It did not further instruct them at this time. Finally, in his motion for a new trial following the verdicts, defendant again asserted that the comments had denied him a fair trial, although his argument at that point was different from the one he had made before trial.^[4] The trial court^[5]denied the motion. Defendant here contends that the rulings below were erroneous.^[6]

He asserts, The prosecutors explanation of the presumption of innocence urged the prospective jurors to picture in their minds eye (1) him (the prosecutor) punching and breaking the bailiffs nose in front of the jury, judge and entire courtroom audience, (2) a trial at which he (the prosecutor) was charged for the assault, and (3) despite all the witnesses to his guilt on the assault, he (the prosecutor) would be entitled to the same presumption of innocence that Mr. Maldonado has before you. [Citation.] [] The conveyed meaning of this explanation is perfectly clear. Mr. Maldonado stands in the same place as the prosecutor who everyone in the room unequivocally knows is guilty as sin. Mr. Maldonado then wears the same shabby cloak of innocence as the prosecutor. In other words, let us all presume Mr. Maldonado is innocent, wink wink, nod nod. Such a trivialization and dilution of the presumption of innocence down to a legal technicality designed to protect the guilty can hardly be the bedrock principle of law envisioned to protect the innocent from erroneous findings of guilt. [Citation.] [] Thus, the prosecutors explanation of the presumption of innocence was plainly wrong.^[7]

Defendants assertions are incorrect. The prosecutor neither trivialized nor diluted the principle of the presumption of innocence by his remarks, nor was his explanation of it wrong. He simply pointed out that even if many people witness a crime, when a defendant begins trial for it, he is cloaked with the presumption of innocence, just as defendant here was. Clearly, the prosecutor was simply attempting to ascertain that the jury understood what the presumption of innocence was. Although this is traditionally the job of defense counsel, there was nothing incorrect about his remarks, nor did he trivialize or dilute the concept. Defendants point has no merit.

2. Insufficiency of the Evidence of Gun Use^[8]

During voir dire, defense counsel said, I believe that the evidence in this case will show that my client will not deny robbing a bank. []  . . .  [] But he will contest that he used a gun in robbing the bank.^[9]

The bank manager testified that when defendant first approached her, [h]e had his hand inside his [day] planner^[10]where the gun was, and he told me to sit down before he started shooting everybody in the bank. . . .  []  . . .  [] . . . He instructed me to sit down and give him money . . . .  []  . . .  [] [He said,] Give me money before I start shooting everybody in the bank. []  . . .  [] I have a gun here, and Im going to start shooting everybody in the bank. She testified that he said he would not shoot people if he got money. While he was saying this, she could see the tip of the gun coming out from the planner. She said he pointed it at her the entire time. She could see the barrel.^[11] As she called her assistant manager to bring her a bag of money, defendant said, You have a minute or Im going to start shooting everybody here. He began counting backward from 59. During this time, he was playing with the gun. The barrel made a brrr, brrr sound,^[12]which she described further as the click of the barrel of the gun and clicking the hammer. She explained that she had a gun at home and had gone target shooting a couple of times, so she was familiar with the triggering sound.

After defendant took police officers who were attempting to stop him on a dangerous post-robbery high speed chase, which ended with a PIT maneuver,^[13]a loaded gun and extra ammunition were found inside the planner in his car.

Defendant testified, claiming he had a loaded gun, but took it out of the planner before going into the bank because he didnt want to hurt anyone^[14]or get hurt himself. He admitted, however, keeping his hand inside the planner while he was in the bank and telling the manager that he had a gun and would start shooting people if she did not give him money. He also admitted he started counting backwards, but he said it was from 30. He said the bullets found inside the planner had been in it while he was in the bank. He claimed the clicking sound the manager heard was him tapping on the bullets inside the planner and moving its zipper. He admitted that while he led the police on the high speed chase after the robbery, the gun was inside the planner in his car. He explained that he had placed the gun back into the planner when he returned to his car after leaving the bank. He did this despite the fact that he was in a hurry to leave the scene. In his written confession to police, he stated that he told the manager, I have a gun in here, so tell your . . . tellers to put money in a bag and bring it over here or Ill shoot or put a bullet in you.

Defendant here claims there was insufficient evidence that he intentionally displayed a gun in a menacing manner during the robbery. The bank manager testified to both seeing a gun and hearing sounds caused by one. That was sufficient evidence.^[15] Defendants claim that he divested himself of the gun before entering the bank so he would not endanger anyone, then put it back into the planner after getting back into his car, despite the fact that he was in a big hurry to leave the scene, is, to put it kindly, far-fetched. We can certainly understand why the jury chose to believe the manager over defendant.

3. Incompetency of Trial Counsel

The trial court asked counsel if they wanted the reading of the jury instructions reported, pointing out that reporting was mandatory unless waived. Defense counsel waived, followed by the prosecutor. The reading of some of the instructions was, accordingly, not reported.^[16] Defendant here contends that this constituted incompetency of trial counsel because it deprived him of effective assistance of counsel on appeal.

A defendants claim of incompetency of counsel carries with it a particular burden. That burden is to demonstrate that counsels action was below the objective standard of reasonableness and, but for the error, there is a reasonable probability the result of the proceeding would have been more favorable to defendant. (Strickland v. Washington (1984) 466 U.S. 668, 693 [104 S.Ct. 2052, 80 L.Ed.2d 674] (Strickland).) To the extent defendant is claiming his trial counsel was incompetent, he can meet neither burden. While we think it unwise and completely unnecessary to stipulate that the reading of instructions need not be reported, if, for no other reason than it creates a potential issue requiring an appellate court to use its already overburdened resources to dispose of, it does not rise to the level of being below the objective standard of reasonableness. More importantly, defendant does not here demonstrate that an instruction or a portion of one was misread by the trial court such that there is a reasonable possibility that he would have enjoyed a better outcome, despite the existence of written instructions, none of which he criticizes, which were made available to the jury.^[17] To the extent defendant claims he has been deprived of effective assistance on appeal, if there was a prejudicial error in the reading of the instructions, appellate counsel can bring a writ incorporating declarations supporting this allegation by any of those present in the courtroom at the time the instructions were read who noticed such an error.^[18] Therefore, appellate counsel has not been foreclosed from thoroughly representing her clients best interests on appeal due to the stipulation.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

HOLENHORST

J.

MILLER

J.

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^[1] At this point, defense counsel objected on the basis that the prosecutors comments were argumentative and not designed to lead to a challenge for cause. The trial court overruled his objection.

^[2] In fact, the trial court had read to the prospective jurors the entire standard instruction on reasonable doubt and the presumption of innocence.

^[3] Appellate counsel for defendant plays fast and loose with the record by asserting that the trial court believed the reasonable doubt instruction given during pretrial admonitions was sufficient to cure any harm. However, the trial court never made a finding of harm. While the court below noted that it was dangerous for counsel to attempt to define reasonable doubt, as the prosecutor correctly pointed out, the remarks at issue did not address the concept of reasonable doubt, but, rather, the presumption of innocence.

^[4]Counsels remarks during the hearing on the motion make crystal clear that defendants argument was different than the one he had asserted before trial began.

^[5] This was a different judge than the one that had denied defendants pretrial motion.

^[6] The People assert that defendant is not here challenging the denials of his motions for mistrial and a new trial. However, defendants opening brief states, [T]he trial courts rulings were error. We acknowledge that the heading defendant uses for his argument and most of the argument in his opening brief appear to be more an attack on the remarks as prosecutorial misconduct. However, defendant never really addressed them as such below and, therefore, waived such argument. Despite this, we have addressed them in such a manner as to permit disposing of his argument on the merits.

^[7]In his reply brief, defendant gives a different interpretation of the prosecutors words. He states, contrary to the argument in the Peoples brief that any ambiguities in the prosecutors remarks were cleared up by the instructions given the jury, [n]othing in these instructions told the jury that contrary to the prosecutors explanation, [defendant] did not share the same presumption of innocence as a man who was obviously guilty as sin. This interpretation is completely unfounded.

^[8] We note that in the statement of facts in her opening brief, appellate counsel for defendant includes many facts that were contained in the probation report and not testified to at trial. This is entirely inappropriate, particularly, here, where defendant is contesting the sufficiency of the evidence.

^[9] Defendants opening statement is not part of the record before this court.

^[10] Defendant described it as a black case. It was an exhibit that was shown to the jury. In the list of exhibits, it is described as a day planner. For the sake of simplicity, we will refer to it as the planner.

^[11] She later testified she was sure she saw the barrel of a handgun.

^[12] She later described it as a trrr, trrr sound.

^[13] This means Pursuit Intersection Technique, in which officers turn into the fleeing vehicle with theirs at speeds lower than 30 to 35 miles per hour, causing the fleeing vehicle to spin.

^[14] The prosecutor impeached defendant on this matter by pointing out that defendant drove 110 miles per hour on the freeway, swerving in and out of lanes and onto the shoulder in order to escape the police after the robbery and intended to drive to his home, where his children were, with the police in pursuit, thus endangering his children.

^[15] Defendants claim that he never pointed a gun at [the manager] is belied by the record. As stated above, the manager testified that defendant pointed the gun at her the entire time. Defendants assertion that he pointed the [planner] at [the manager who] . . . then incidentally saw the silver tip of what she believed was a gun is not presenting the evidence in the light most favorable to the judgment[,] which he acknowledges is his duty.

^[16] The reading of the pre-instructions and CALJIC Numbers 3.31, 17, 30, 17.31, 17.40, 17.41, 17.42, 17.43, 17.45, 17.47, 17.50, 17.52, and 17.53 were reported.

^[17] Defendant points out that he obtained a settled statement from counsel and the trial court which states, Neither the parties nor the Court recall the oral instructions given to the jury. Neither the parties nor the Court recall whether the oral instructions were given in accord with the written instructions given to the jury. Both defense counsel and the prosecutor believe they would have listened to the oral instructions while reading through their copies of the written instructions. If either defense counsel or the prosecutor had discerned a significant difference between the oral and written instructions, both believe they would have informed the Court. The Court would have striven to accurately read the written instructions to the jury.

Based on this statement, defendant cannot carry his burden with respect to his incompetency of counsel claim. Any possibility the trial court misread any of the instructions to the substantial detriment of defendant is not the same as a reasonablepossibility (required by Strickland) it did so.

^[18] We note that in their settled statement, ordered by this court, neither trial counsel nor the trial court could recall the reading of the instructions by the latter. However, they state, Both defense counsel and the prosecutor believe they would have listened to the oral instructions while reading through their copies of the written instructions. If either . . . had discerned a significant difference between the oral and written instructions, both believe they would have informed the court. [Neither did.] The [trial c]ourt would have striven to accurately read the written instructions to the jury.