P. v. Norris
Filed 4/15/13
P. v. Norris CA1/5
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
and Respondent,
and Appellant.
A131999
(Alameda County
Super. Ct. No. 161546)
Curtis
Norris appeals from a judgment of conviction for
improperly denied his motion to suppress two letters he wrote while in jail
awaiting trial, letters that were later used as evidence at his trial. Norris further contends his trial counsel was
ineffective because counsel failed to prevent the jury from seeing and hearing
a portion of one of the letters in which Norris referred to the possible
sentence he might serve if convicted.
Finally, Norris asserts that the prosecutor committed misconduct in her
the integrity of defense counsel.
We
find none of Norris’s contentions persuasive.
Accordingly, we will affirm the judgment.
Factual and
Procedural Background
We
summarize below the facts relating to the crime and Norris’s motion to
suppress. Additional facts relevant to
the legal issues Norris raises are included in the discussion portion of our
opinion.
The Shooting
On
the evening of September 16, 2008, Norris shot and killed Edward Dismukes,
who had previously been in custody with Norris in Santa Rita Jail. The shooting took place on 38th Street in
Oakland while Norris was riding in a car driven by his girlfriend, Latoya
Estrada. While driving on 38th Street,
Estrada saw a bicyclist on her left.
Norris “said something about all the shit [the bicyclist] was talking in
Rita, and then he started shooting . . . .†Estrada and Norris then drove away from the
scene.
A
police officer who responded to the shooting found Dismukes lying on the ground
with injuries to his left chest and right leg and groin area. A subsequent autopsy revealed Dismukes had
been shot three times and that the gunshot wounds had caused his death. After the shooting, Norris and Estrada were
arrested in San Jose and later turned over to the Oakland police.
Norris’s
Statements to the Police
An
Oakland police officer interviewed Norris and advised him of his
shooting Dismukes. Norris said he had
heard Dismukes had shot appellant’s cousin and that Dismukes was talking about
“coming after†Norris. Regarding the
shooting, Norris told the police Dismukes “wasn’t doing nothing but he moved
like he was reachin’ for somethin’ . . . like he was about to grab –
when he started grabbin’ . . . [I] did my thing.†In a separate interview, Norris told the
police Dismukes had “made a move like he was going for a gun†and claimed he
had shot the victim to protect himself.
Norris’s Letters
from Jail
On
December 24, 2008, while awaiting trial, Norris was incarcerated in the
Glenn Dyer Jail in Oakland. On that day,
Alameda Deputy Sheriff Fred Martinez was working at one of the jail’s housing
units. Martinez’s duties included
assisting with incoming and outgoing inmate mail. Under the jail’s rules, inmates sending
outgoing mail must place their name, personal file number (PFN), and facility
address on the outside of the envelope.
Outgoing mail that does not have the required sender information is
returned to the housing unit for correction.
The
mail clerk returned a letter to Martinez because the envelope listed only a
nickname, “li’l Curt,†and no PFN.
Martinez opened the letter in an attempt to identify the author. As it had not been signed, Martinez read the
contents of the letter, which listed an attorney’s name, an upcoming court
date, and the charge the letter’s author was facing. The letter indicated its author had killed
someone, and after reviewing the inmate database, Martinez discovered that
Norris was in custody on a homicide charge and that the attorney named in the
letter was listed as counsel for Norris.
At trial, Martinez read the letter, dated December 27, 2008, and
headed “‘Keep it Solid,’†to the jury:
“Ricky
what’s up nigga. What you all niggas
been up to. Man it sound like you all
niggas been haven hella fun that’s what up.
Yall niggas be safe out there.
What’s up with Tim what’s his number?
What’s up with Phil what’s that niggas number. You got it?
Tell him I need him. Tell Kenny I
said what’s up with it. Or go to Ream
house and get his number. Tell him I
said I wanna write him. Man my visiting
hours is Fridays at 12:00 to 3:00 and on Sundays at 8:00 to 12:00. Man yall niggas need to come up here
fast. What’s the name of the song yall
did? An tell Deas I need a burn
out. I seen that nigga Curt when I went
to court. It’s good. He cool.
He said yall had some burn out’s on line. What’s up with that nigga pee wee. What they doin with him. Or you got a cell phone yet if you do what’s
yo number so I could call you. I seen
that nigga Jose. He was on the other
side I don’t know if he still there tho.
But shit tell Phil I need him to call my attorney and tell him, number
one, the dude Mike I killed was the same dude who shot Phil.
“Number
two. The way he no is because when I got
out and Phil got shot he told me Mike name and described him to me and we knew
we was talkin about the same person.
“Number
three. The way Phil described him was
dark skinned, short hair, and his late 30s or 40s and slim.
“Number
four. If he ask make up a story of how
yall had got into it that made him shoot Phil.
“Five. Explain to him the same way you got shot when
you was with Fresh. Don[’]t fuck up . .
. tell Phil if he don’t make that call it’s going to be over 4 me. So be on that nigga lied about that. Read this paper off to him word 4 word. I go back to court on March 3, 2009.
“These
are the things I need Phil to tell my attorney.
Tell him he an[d] got to get on the stand. I just need him to talk to my attorney. Tell him to call him at 510 272-6600[.] His name Roger Spencer. Tell Phil I need him to do this fo me and
I’ll be good. I’ll be back. Tell that nigga I love him and be safe out
there. Yall niggas scanless talkin about
when I got burnt by that burn out bitch fuck yall niggas LOL it’s good
tho. Bra send me some pictures and tell
Deas I said I heard he got a nickel with two of them thangs. That’s whats up. Get active.
Which when I come home its all be good.
Nigga go be all tated up 96 to 10-6.
“If
Ceat got a number send it to me. Send me
yall niggas numbers. Tell Phil to handle
asap.
“Love
you Bra. Gone. What’s Tae number?â€
Martinez
generated a report to document how he had come into possession of the
letter. Because he thought the letter
had evidentiary value, Martinez contacted the Oakland Police Department’s
homicide division as well as the prosecutor handling the case and notified them
of the letter’s contents.
On
January 13, 2009, Sheriff’s technician Karen Stirling opened a letter
Norris had given her and gave it to her supervisor, who turned it over to
Martinez. The envelope was addressed to
Phil Willson and listed Norris as the author but did not include a PFN. At trial, Martinez read a redacted version of
the letter to the jury:
“Bra
what’s up with it? Me been keeping my
head up. I think that nigga cell was in
here, but it C pod. I’m in A. [. . .] I was tryna see if we go on a visit together
an I was go see what’s up. That nigga
gone now. Yea man I’m tryna see if I can
get 15 years or something around it. The
little hoe bitch tellin on everything I did with her around me. So man I’ma be down 4 aimin you niggas keep
it solid and be safe. Get money. But yea I need you to do me a favor. I need you to call my attorney and holla at
him 4 me. Man this shit would help my
base hella much. I need you to tell him. One.
The nigga name is Mike. Two. Tell them that’s the nigga who shot you.
“Three. Explain it the same way it happen with you
and fresh.
“Four. If he ask what he look like say dark skinned
slim cat in his late 30s early 40s. 150
to 170 pounds. Short hair.
“Five. If he ask how do you know it’s the same
dude? Say after you got shot, you
explain how he looked and told me his name when I got out of jail and we knew
it was the same person.
“Six. If he ask how yall got into it, just make up
something or say you rather not talk about it.
“Man
I know this sound [cra]zy but my case is really in your hands.
[. . .]
“You
tell him that it would make better on me hella much. I told the people I was scared coz he shot
you and at that time, when I seen him he went reachin for something and I knew
it was a gun so I shot him before he shot me.
That’s like a manslaughter.
[. . .]
“A
manslaughter time goes from three, six, 11 years. So I need you. I would take 15 years right now and be back
in 13 plus the time I got in. Man on my
moma I’ma o you a big ass favor. Bra
write me back and let me know what’s up if you called him and what
happened. Man I need that fast. I go back to court I think on the 3-3-09 and
I’ma see what’s up. These people tryna
rush me and that bitch is probly go get on the stand and point me out, but I’m
hoppen they come at me with a good deal if not they have to give what time I
ant taken and in with and L on it. Feel
me. But yea holla at me and let me know
what’s up. Tell that nigga D I said keep
his head up and be safe out there when he get out. Bra be safe out there I ant tryna see you in
here. And send some pictures I need
them. I’ma be gone 4 a min. Keep it solid love yall nigga gone . . . My
attorney name and number is Roger Spencer (510) 272-6600. Be on yo feet before you holla at him. Think this shit through.
“[.
. .] Lil Curt.â€
Norris’s Motion
to Suppress the Letters
Defense
counsel moved in limine to suppress the two letters. The defense argued that while there is no
expectation of privacy in prison, there is such an expectation in jails. Defense counsel also argued there was no need
for institutional security for inmates’ outgoing mail. Norris’s counsel contended that standard
sheriff’s office practice is to have the inmate seal his letter before giving
it to a sheriff’s office employee – “[t]he mail is not normally subsequently
reopened and read or anything like that.â€
According to defense counsel, a policy allowing inmates “to seal their
own mail without having anyone read it, the mail goes out and mailed to the
people on the outside, certainly creates an expectation of privacy in that
there would be a belief that the mail is not going to be read because it’s not
given to the sheriff’s office unsealed.â€
After
rejecting the prosecution’s argument that Norris lacked standing to contest the
search, the trial court held a hearing on the motion to suppress. At the hearing, Deputy Martinez testified
that he was assigned to the Glenn Dyer Jail in Oakland in 2008. His duties in the housing unit included handling
correspondence. He testified that the
jail’s rules regarding correspondence by inmates dictate the manner in which
envelopes are marked. The jail’s “Inmate
Rules and Information†pamphlet, section 16, subsection (z), states
that “outgoing mail must include the author’s name, their PFN or personal file
number, and the facility return address.â€
The inmates are told of this requirement.
On
the morning of December 24, 2008, Martinez was collecting mail from
inmates. He “came across a letter that
had been returned by the mail clerk because it had not – the send information had
not been included on the letter or on the envelope.†The return address simply said, “Lil
Curt.†The mail clerk had written on the
envelope, “no name, no PFN.†Martinez
opened and reviewed the letter to “try to identify the sender to have them
correct the envelope.â€
Martinez
reviewed the computer listing of inmates assigned to the housing area for any
inmates named Curt or Curtis. The letter
also contained an attorney name and an upcoming court date, which helped
Martinez identify Norris as the author of the letter. Seeing that Norris was charged with murder,
Martinez notified the Oakland Police Department’s homicide division, the deputy
district attorney, and his classification officer. Martinez believed the letter was pertinent to
the investigation because the letter’s author acknowledged having killed
someone, instructed the intended recipient to contact the author’s attorney,
and the letter seemed to contain “instructions to fabricate an explanation or
outline for the actions of the author.â€
A
few weeks later, Martinez received a second letter, authored by Norris and
addressed to Phil Willson, which had been recovered on the jail’s
administrative floor. The envelope of
this second letter listed the name “Curtis Norris,†but did not list appellant’s
PFN. Martinez said the second letter
appeared to instruct the recipient to contact the author’s attorney and
directed the recipient to provide an alibi.
Martinez then generated a brief report about the second letter.
After
hearing argument from counsel regarding the first letter, the trial court ruled
it admissible. It held that Norris’s
incarceration limited any expectation of privacy he might have, and while the
rule permitting inmates to seal their outgoing mail created a limited
expectation of privacy, that expectation was conditioned upon compliance with
the institution’s rules governing mail.
If a letter violated those rules, then the inmate ran the risk that the
sheriff’s office would open the letter in an attempt to identify its author. The court therefore denied the motion to
suppress as to the first letter, but it continued the hearing to take further
evidence before ruling on the admissibility of the second letter, since that
letter did have Norris’s name on it.
At
the continued hearing, Deputy Jose Rosas, who worked in the Glenn Dyer Jail’s
classification unit, testified that he screened incoming and outgoing
mail. When inmates are booked into jail,
they are given a rules and information pamphlet. Section 16, subsection (i) of that pamphlet
states that “[a]ll mail will be opened and inspected for contraband.†Subsection (z) states that “all outgoing mail
must have a name, PFN number and return address of the inmate. If the mail is returned to jail without a
name and PFN, it will be destroyed.â€
Both
ingoing and outgoing mail is inspected for contraband. According to Rojas, “Everything gets opened,
unless it’s legal mail.†Policy and
procedure 17.01, which explains the procedure for inmate correspondence
and mail, states that “[a]ll outgoing mail will be opened and read by staff if
it is deemed necessary to preserve jail security.†Rojas also testified that the Alameda County
Sheriff’s Office follows the California Code of Regulations’ Minimum Jail
Standards for Detention and Correction which explain that all nonconfidential
inmate mail is subject to being read in its entirety, although inmates are not
given copies of these regulations. Rojas
explained that the standard procedure is to open the inmates’ sealed letters
before mailing them in order to determine whether jail security is a concern.
Sheriff’s
technician Karen Stirling worked in the classification unit and her duties
included recording inmate conversations and screening incoming and outgoing
mail. Her training was to open “incoming
and outgoing mail†to “scan the contents of the mail for contraband coming in
or evidence, criminal activity or outgoing criminal activity going on from
within the jail.†Stirling testified
that all outgoing mail goes to the classification unit before it is sent to the
postal service. Outgoing mail is
“randomly screened,†meaning the mail is opened and its contents read. Some mail is randomly selected, but other
mail is screened on request. The purpose
is “to investigate possible ongoing criminal activity from within the
jail.†Stirling scans the letters, i.e.,
“quickly read[s] them.†If she
encounters a letter evidencing criminal
activity, Stirling gives it to her supervisor. After Stirling read Norris’s second letter,
she gave it to her supervisor, because she was unsure whether a police report
should be generated. She thought a
report might be necessary because the letter “addressed some specific crimes[.]â€
After
argument from counsel, the trial court denied the motion to suppress. Returning to Norris’s first letter, the court
noted that it had no name or PFN on the envelope and that any privacy right he
might have had was lost because the letter did not comply with the jail’s rules
and regulations. The court found the
sheriff’s office acted in good faith when it opened the letter to ascertain its
author, which led to the discovery of incriminating
evidence. The court noted that
section 16, subsection (i) of the inmate rules pamphlet states that “all
mail will†be opened, which lets inmates know their mail would be opened. This rule, together with the Alameda County
Sheriff’s Office policies on incoming and outgoing mail were sufficient to put
inmates on notice that their mail was subject to being opened. The court also noted that it was clear that
outgoing mail is searched randomly and that such searches included reading of
the mail. As a consequence, Norris
received adequate notice that he had no expectation of privacy in the contents
of his letters.
Trial and
Conviction
After
a jury trial, Norris was convicted of second degree murder with enhancements
for personally and intentionally discharging a firearm and causing great bodily
injury and death, intentionally discharging a firearm, and personally using a
firearm.
On
April 29, 2011, the trial court sentenced Norris to 40 years to life in
state prison. Norris filed a timely
Discussion
Norris
raises three arguments on appeal. First,
he contends the trial court erred in refusing to suppress the letters he wrote
from jail. Second, he claims his trial
counsel provided ineffective assistance by failing to prevent the jury from
seeing unredacted versions of the letters after the trial court had ordered
their partial redaction. Third, he
argues the prosecutor committed misconduct by allegedly asserting defense
counsel was attempting to fabricate a defense to the charged crimes. We address these arguments in turn.
I.
Norris
challenges the trial court’s denial of his motion to suppress the letters he
wrote from jail, claiming it erred in finding that government officials did not
search and seize his letters without due process.
clarity, he appears to make a two-pronged argument. First, relying principally on the California
Supreme Court’s decision in North v.
Superior Court (1972) 8 Cal.3d 301 (North),
he contends that a combination of misleading regulations regarding inmate mail
and actions by jail staff gave him a reasonable expectation of privacy in his
written communications. Second, citing
the United States Supreme Court’s opinion in U.S. v. Jones (2012) 132 S.Ct. 945 (Jones), he asserts that jail officials trespassed upon property
protected by the Fourth Amendment (i.e., his “papersâ€) without first obtaining
a warrant. In his reply brief, Norris
clarifies that while Jones did not
discuss how “courts should assess application of any rules that may pertain to
the actual execution of warrantless searches,†the significance of
a protected Fourth Amendment right because his papers were seized.†As we will explain, both of Norris’s
arguments are foreclosed by controlling authorities from our federal and state
high courts.
A.
Privacy in His Letters.
Norris
contends he had a reasonable expectation of privacy because the jail’s rules
regarding inmate mail were ambiguous and because he never received notice of
any regulation stating that his outgoing mail might be opened and read. In addition, he asserts that jail officials
had a practice of informing inmates if their letters were not deliverable and
returning undeliverable letters to inmates.
Because of this combination of ambiguous regulations and informal
practices, Norris was allegedly “lulled into believing†his outgoing mail would
not be opened and read. (
p. 311.) We cannot agree.
Although
neither party cites the cases, we conclude that two opinions of the California
Supreme Court dispose of this argument.
In People v. Phillips (1985)
41 Cal.3d 29 (Phillips), the court considered
a defendant’s claim that jail officials had violated his Fourth Amendment
rights by inspecting two letters he had written in jail while awaiting
trial. (Id. at pp. 75, 80.)
Relying on North, supra, 8
Cal.3d 301, the defendant claimed “that jail officials lulled him into a ‘sense
of pseudoprivacy,’ by informing him that his outgoing mail would not be
inspected.†(Phillips, supra, 41 Cal.3d at p. 80.) The Supreme Court rejected this argument on
facts significantly more favorable to the defendant than those presented by
this case.
“ambiguous†answers to the defendant’s questions about the monitoring of mail,
but it declined to characterize those statements as giving rise to a reasonable
expectation of privacy. (
case, it had “condemned a ‘deliberate’
scheme to ‘secretly exploit [] marital confidences . . . for the sole
purpose of gathering possibly incriminating evidence.’†(Id.
at p. 81.) If the facts in
reasonable expectation of privacy in the detainee’s outgoing mail, the facts
here are even less so.
In
People v. Davis (2005) 36 Cal.4th 510
(Davis), our state Supreme Court held
that the surreptitious tape recording of a jailhouse conversation between a
pretrial detainee and two accomplices did not violate the Fourth
Amendment. Relying on
held pretrial in a jail . . . have no expectation of privacy
. . . .†(
p. 527.) As the
fact of arrest and incarceration
[that] abates all legitimate Fourth Amendment privacy and possessory interests
in personal effects [citations] and therefore all
an inmate’s cell are reasonable.’ (
(conc. opn. of O’Connor, J.), italics added.)â€
(Davis, supra, 36 Cal.4th at
p. 527.)
Significantly,
the Davis court also made clear that
searches regardless of the purpose of the search. (Davis,
supra, 36 Cal.4th at p. 527.)
The purpose of the search “has no bearing on the question whether a
legitimate expectation of privacy exists.â€
(Id. at p. 528.) Instead, “[i]t is the fact that an intrusion
intrusion, that vitiates the expectation of privacy.â€
italics added.) Although the court
acknowledged that at the time the search in Davis
occurred, state law prohibited the recording of a pretrial detainee’s
conversations with other detainees (id.
at pp. 527-528), it held that even if the detainee could reasonably have
expected that the police would not violate state law by monitoring his
conversations, “that expectation was basically irrelevant to the
at p. 528.)
Applying
the analysis of these cases to the one before us, it is readily apparent that
Norris can have had no reasonable expectation that his outgoing mail would
remain private. Davis held flatly that pretrial detainees have no expectation of
privacy in jail. (Davis, supra, 36 Cal.4th at p. 527.) As the trial court found, the rules pamphlet
Norris received and the jail’s policy on incoming and outgoing mail made him
aware that his mail might be opened.
Indeed, the rules pamphlet states unequivocally, “All mail will be opened and inspected for contraband.†(Italics added.) Accordingly, Norris was aware “that an
intrusion may occur,†a fact that “vitiate[d] the expectation of privacy.†(Davis,
supra, 36 Cal.4th at p. 528; see also People v. Garvey (1979) 99 Cal.App.3d 320, 323 [save for
communications to attorneys or public officials, “a prisoner has no expectation
of privacy with respect to letters posted by himâ€]; People v. Manson (1976) 61 Cal.App.3d 102, 152 [noting general rule
that mail authored by unconvicted prisoners may be admitted if obtained “by
means of routine mail censorshipâ€]; People
v. Dinkins (1966) 242 Cal.App.2d 892, 902 [prison officials may censor mail
of prisoners awaiting trial].)
Nor
could the alleged ambiguity of the jail’s rules or the actions of the jail’s
officials have created any such expectation.
(See Phillips, supra, 41
Cal.3d at pp. 80-81.) Indeed, even
if Norris “may have been inadvertently misled to believe that his letters would
pass unread,†the inspection of his mail would not have been unreasonable
because there is no evidence that jail officials acted in bad faith or exceeded
the scope of their authority under the regulations. (Id.
at p. 81.) In the absence of any
affirmative representations that would mislead Norris into thinking his mail
would remain private, he cannot make out a Fourth Amendment claim. (Ibid.;
see North, supra, 8 Cal.3d at
p. 312; cf. People v. Hammons
(1991) 235 Cal.App.3d 1710, 1716 [recording of jailhouse conversation between
pretrial detainees should have been suppressed where “the police led defendants
to believe that they would have a private conversation, and . . . the
police in fact made an express representation of privacyâ€].)
B.
Before
turning to the merits of Norris’s argument based on Jones, supra, 132 S.Ct. 945, we note that his opening brief does
not tell us exactly what effect he thinks Jones
should have on our analysis. His brief
states it is “arguable†that analyzing his Fourth Amendment claim “under the
‘reasonable expectation of privacy’ test formulated by Justice Harlan in his
concurring opinion in Katz [
complicated.†(Italics added.) This equivocal statement is followed by an
argument headed, “New Development in Fourth Amendment Jurisprudence.†But such general headings do not satisfy the
appellate rules requiring separate headings summarizing an appellant’s
argument. (See Loranger v. Jones (2010) 184 Cal.App.4th 847, 858, fn. 9
(Cantil-Sakauye, J.) [general argument headings like “Statutory Analysis†and
“Case Analysis†do not satisfy requirements of Cal. Rules of Court,
rule 8.204(a)(1)(B)].) Norris then
claims that accepting the “broad principle that incarcerated people do not have
a reasonable expectation of privacy while in jail†is “just the sort of
narrowing of the scope of the Fourth Amendment . . . the Supreme
Court repudiated in Jones.†Whatever effect Jones may have on Fourth Amendment jurisprudence, however, that
case did not purport to overrule cases such as Hudson, supra, 468 U.S. 517, and Norris makes no effort to
reconcile Jones with these
authorities.
In
any event, we conclude that Jones, supra,
132 S.Ct. 945 does not assist Norris here.
As we recently explained in People
v. Robinson (2012) 208 Cal.App.4th 232 (Robinson),
Jones “held that a search also occurs
where a government official physically intrudes in a constitutionally protected
area for the purpose of obtaining information.â€
(Robinson, supra, 208
Cal.App.4th at p. 243, fn. 11.)
Norris contends he had a protected Fourth Amendment right in his
letters, but as discussed in the preceding section, the California Supreme
Court has disagreed. Under
“‘abate[d] all legitimate Fourth Amendment privacy and possessory interests in personal effects[.]’†(Davis,
supra, 36 Cal.4th at p. 527, italics added.) To the extent Norris appears to claim he
suffered a common law trespass to his property, it is difficult to understand
how this can have occurred if his status as a detainee deprived him of any
legitimate possessory interest in it.
(See ibid.)
Furthermore,
Jones is factually distinguishable
from the case before us because it did not arise in the context of
incarceration. This is significant
because “the United States Supreme Court has ‘made it clear that there are
exceptions to the warrant requirement.
When faced with special law enforcement needs, diminished expectations
of privacy, . . . or the like, [it] has found that certain general,
or individual, circumstances may render a warrantless search or seizure
reasonable.’ [Citation.]†(Robinson,
supra, 208 Cal.App.4th at p. 246, fn. omitted.) Incarceration involves just such special law
enforcement needs and diminished expectations of privacy. (See Hudson,
supra, 468 U.S. at p. 528 [prisoner’s expectation of privacy “always
yield[s]†to special need for institutional security in prisons];
[security concerns negate inmates’ expectation of privacy].)
explicitly or implicitly, cases such as Hudson,
and Norris does not argue that such cases are not controlling. Tellingly, Norris makes no response to the
Attorney General’s argument—based on Hudson
and earlier California cases—that prisoners have no expectation of privacy in
their mail. Indeed, Norris does not even
cite these cases. Thus, “[s]ince
appellant has not deigned to reply to the argument of respondent, we have a
right to assume that the former deems the argument of the latter
unanswerable[.]†(Campbell v. Ingram (1918) 37 Cal.App. 728, 732.) Accordingly, we reject Norris’s argument that
Jones required the jail’s officers to
obtain a warrant before searching his outgoing mail.
II. Norris’s
Claim of Ineffective Assistance of Counsel Fails Because He Cannot Demonstrate
Prejudice.
Norris
argues his trial counsel was ineffective for failing to prevent the jury from
receiving unredacted versions of his letters that contained other crimes
evidence and sentencing information.
Norris has not demonstrated he was prejudiced.
A.
After
the trial court ruled Norris’s letters were admissible, it noted that there
were parts of the letters that would have to be redacted. It referred specifically to a portion of
Norris’s second letter in which he mentioned “shooting somebody else and
chasing somebody[.]†The court explained
this would have to be redacted as uncharged character act evidence, and defense
counsel agreed.
The
prosecution asked Deputy Martinez to read the second letter to the jury. Before he did so, the trial court explained
to the jury that there were redactions in the letter and that the jurors should
not speculate as to why the court had ordered certain portions redacted. Martinez read the redacted letter to the
jury, and while it omitted the statements about uncharged acts, the version he
read included a passage in which Norris had written, “[S]o I shot him before he
shot me. That’s like a manslaughter . .
. . A manslaughter time goes from three,
six, 11 years. So I need you. I would take 15 years right now and be back
in 13 plus the time I got in.†Defense
counsel did not object.
At
a later conference at which the trial court and counsel discussed exhibits, the
trial court explained that defense counsel objected to the phrase in the second
letter “related to the state prison
exposure for manslaughter.†The trial
court ordered that the phrase, “A manslaughter time goes from three, six, [11]
years,†and defense counsel agreed to this redaction. A copy of the letter containing both the
original redactions and this further redaction was created and received in evidence
as People’s exhibit 4C.
name="_ftnref5" title="">[5] The jury requested this exhibit during its
deliberations.
B.
On appeal, it is Norris’s burden to
demonstrate, by a preponderance of the evidence, that he is entitled to relief
on the grounds of ineffective assistance of counsel. (E.g., People
v. Ledesma (1987) 43 Cal.3d 171, 217-218.)
To do so, he must show that: (1) his counsel’s performance fell below an
objective standard of reasonableness under prevailing professional norms and
(2) he was prejudiced by the deficient performance. (People
v. Lucas (1995) 12 Cal.4th 415, 436.)
Defendant’s burden is difficult to carry on direct appeal (
876), because the trial record often does not indicate why trial counsel acted
or failed to act in the manner he did. (See
People v. Mendoza Tello (1997) 15
Cal.4th 264, 266-268.) And we may not
reverse a conviction for ineffective assistance of counsel on direct appeal
unless the record affirmatively discloses that counsel had no rational tactical
purpose for his act or omission. (
p. 876.) Where the record sheds no
light on the issue, we must affirm unless there could be no conceivable reason
for counsel’s act or omission. (
1254.) Furthermore, our review of trial
counsel’s performance is deferential (People
v. Ledesma, supra, at p. 216), and there is a strong presumption that
counsel’s actions fell within the wide range of reasonable professional
assistance. (People v. Lucas, supra, at p. 437.)
Nevertheless, “we need not dwell on
the question whether defendant can establish deficient performance by his trial
counsel†if he cannot establish prejudice, “that is, a reasonable probability
of a more favorable outcome in the absence of the assertedly deficient
performance.†(People v. Stewart (2004) 33 Cal.4th 425, 495.) In other words, we ask “‘whether counsel’s
conduct so undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result.’ [Citation.]â€
(In re Cudjo (1999) 20 Cal.4th
673, 687.) To meet this burden, a
defendant must prove prejudice that is a demonstrable reality and not simply
speculation. (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
C.
Counsel’s Error.
The
parties agree that there could have been no legitimate tactical reason for
Norris’s trial counsel to acquiesce in the admission of the unredacted
letters. Thus, the only question before
us is whether Norris was prejudiced by his counsel’s error. The Attorney General argues he was not, and
thus his claim of ineffective assistance of counsel must fail. We agree.
First,
while it is ordinarily improper for the jury to hear information about
sentencing, it is also “generally presumed that erroneous admission of [such]
evidence is cured by instructing the jury to disregard it, unless the
impression created is so strong as to have prejudiced the defendant.†(United
States v. Reagan (7th Cir. 1982) 694 F.2d 1075, 1080.) Here, the trial court instructed the jury,
“In your deliberations, do not discuss or consider the subject of penalty or
punishment. That subject must not in any
way [a]ffect your verdict.†We must
presume the jury understood and followed this instruction. (People
v. Jackson (1986) 177 Cal.App.3d 708, 714 [jury presumed to follow
instruction that it not consider penalty or punishment for crime].)
Second,
Norris argues he was prejudiced because any juror who harbored some reasonable
doubt about whether he shot as a pure act of violence rather than in an
unreasonable belief that he needed to defend himself would have been persuaded
to convict him of the greater crime of murder rather than grant him the lighter
sentence for manslaughter. We agree with
the Attorney General, however, that the evidence that Norris committed murder
was extremely strong, while the evidence supporting his claim of self-defense
was extraordinarily weak.
Norris
shot Dismukes multiple times while yelling at the victim, “This is for the shit
that you said at Rita.†Norris told
Estrada he shot Dismukes because the latter “was talking hella shit in
. . . Santa Rita.†In his
interview with the police, Norris admitted that while the two men were in Santa
Rita, Dismukes “was trying to pick on†him and that the two had almost gotten
into a fight. After the shooting, Norris
fled the scene of the crime, and when he was found in San Jose, he gave a false
name to the police. He took the bullet
shells from the floor of Estrada’s car and threw them away in his backyard, and
he attempted to conceal the gun used in the shooting in the motel room in which
he was discovered. He told Estrada he
was “dumpin’ [the gun] because he had shot somebody.â€
In
contrast, the only evidence for Norris’s claim of self-defense were his own
statements to Estrada and to the police that he had seen Dismukes reaching for
his waistband. Estrada contradicted this
testimony, however, and told the police she did not see Dismukes carrying or
reaching for a weapon or displaying any aggression towards Norris.
which no objection is made provided powerful evidence that Norris fabricated
his claim that Dismukes had shot his cousin, which was allegedly the reason
Norris feared the victim might harm him.
In fact, in his reply brief, Norris acknowledges that his letters
contained “what could be read as attempts . . . to fabricate a
self-defense claim.†Thus, as Norris all
but admits, his own words undermined his argument that he feared Dismukes
because he believed Dismukes had shot his cousin.
The
above-described evidence makes the case before us unlike those Norris cites in
support of his argument. Norris relies
principally on People v. Allen (1973)
29 Cal.App.3d 932 (Allen) for the
proposition that in criminal cases, improper references to penalty or
punishment are generally held to be reversible error. (Id.
at pp. 936-937.) In that case, a
jury had found the defendant was a mentally disordered sex offender. (Id.
at p. 933.) In the trial court, the
prosecutor had referred repeatedly to the treatment the defendant might receive
if the jury found him to be a mentally disordered sex offender, raising the
matter during jury voir dire, during the examination of psychiatric witnesses,
and in closing argument. (
referring to the treatment the defendant could receive. (Id.
at pp. 934-935.) The Court of
Appeal characterized the evidence on the issue of whether the defendant was a mentally
disordered sex offender as “close.†(
close, and unlike the trial judge in Allen,
the trial judge here made no reference to the sentence Norris might serve and
instead instructed the jury that it was not to consider the issue of punishment
in reaching its verdict.
We
therefore reject Norris’s claim of ineffective assistance of counsel because he
has failed to demonstrate he was prejudiced by trial counsel’s error. Our review of the evidence shows there is no
reasonable probability he would have received a more favorable outcome in the
absence of his counsel’s deficient performance.
III.
Norris
claims the prosecutor committed misconduct in her rebuttal argument. He argues the prosecutor attacked the
integrity of defense counsel by effectively accusing the latter of
dishonesty. We disagree.
A.
After
closing argument for the defense, the prosecutor gave her rebuttal. At the beginning of her rebuttal argument,
the prosecutor stated: “One of the most
difficult jobs for a criminal defense attorney is they’re basically playing
with the hand they are dealt with. And
when there is a lot of evidence, overwhelming evidence, they have to somehow
twist . . . .†Defense
counsel objected that this was improper argument, but the trial court overruled
the objection.
The
prosecutor then continued, “And in this case, that’s exactly what we have
here. We have overwhelming evidence that
defendant committed murder. And Mr.
Spencer needs to somehow make it a little better, but he’s not a magician. He can’t go back in time and change the
facts. The facts are what they are. The facts are what they are. [¶] So instead, they have to try to come
up with some sort of a defense. No
matter how unreasonable it is, they have to.
And this is exactly what Mr. Spencer is trying to do.†Defense counsel objected again and was again
overruled.
The
prosecutor finished her rebuttal argument by telling the jury, “[Norris is]
trying to ask [you] for a favor. Do not
give him a favor. He does not get a
favor. Do not give him a manslaughter. Don’t give him that favor.†Defense counsel did not object to this final
portion of the prosecutor’s argument.
B.
“The
standards governing review of misconduct claims are settled. ‘A prosecutor who uses deceptive or
reprehensible methods to persuade the jury commits misconduct, and such actions
require reversal under the federal
Constitution when they infect the trial with such “‘unfairness as to make
the resulting conviction a denial of due process.’†[Citations.]
Under state law, a prosecutor who uses such methods commits misconduct
even when those actions do not result in a fundamentally unfair trial.†(People
v. Parson (2008) 44 Cal.4th 332, 359.)
But
a prosecutor enjoys “wide latitude in describing the deficiencies in opposing
counsel’s tactics and factual account.â€
(People v. Bemore (2000) 22
Cal.4th 809, 846.) Thus, the prosecutor
may “point out that the opposing side is engaging in what [she] believes to be
an attempt to confuse the issues, and may urge the jury to ignore that attempt
and focus on the relevant evidence.†(
1, 31-32.) This is all that occurred
here. Indeed, our state high court has
consistently rejected misconduct claims when confronted with comments similar
to those made by the prosecutor in this case.
(See, e.g., People v. Huggins
(2006) 38 Cal.4th 175, 207 [fair comment and not misconduct for prosecutor to
argue: “‘Now, [defense counsel] has a tough job, and he tried to smoke one past
us,’ and that counsel ‘will admit only what he has to admit and no more. He will come in at the lowest price possible’â€];
People v. Cunningham (2001) 25
Cal.4th 926, 1002-1003 [no misconduct where prosecutor said defense counsel’s
“‘job is to put up smoke, red herrings’â€]; People
v. Gionis (1995) 9 Cal.4th 1196, 1215-1216 & fn. 12 [no misconduct
where prosecutor argued defense counsel was talking out of both sides of his
mouth and that this was “‘great lawyering’ which “‘doesn't change the facts, it
just makes them sound good’â€]; see also People
v. Valladares (2009) 173 Cal.App.4th 1398-1399 [no misconduct where prosecutor
began rebuttal by twice characterizing defense argument as a “smoke screen†and
calling defense counsel’s argument about defendant’s intent “fantasticâ€].) Here, the prosecutor did no more than “use[]
colorful language to permissibly criticize counsel’s tactical approach.†(People
v. Huggins, supra, 38 Cal.4th at p. 207.) Because we conclude that no misconduct
occurred, we reject Norris’s claim.
Disposition
The
judgment is affirmed.
_________________________
Jones,
P.J.
We concur:
_________________________
Simons, J.
_________________________
Needham, J.
name="_ftn1" title="">[1]
Although the heading of this argument in Norris’s brief characterizes this as a
due process claim, Norris discusses only authorities dealing with the Fourth
Amendment’s protection against unreasonable searches and seizures. (See U.S. Const., 4th Amend. [“The right of
the people to be secure in their persons, houses, papers and effects, against
unreasonable searches and seizures, shall not be violated
. . .â€].) We will therefore
address only the Fourth Amendment issue.
name="_ftn2" title="">[2]
The Supreme Court found no Fourth Amendment violation despite the following
facts: “It is undisputed that defendant
was not informed that his outgoing mail was being read. Moreover, the manual prepared for inmates by
one of the jail officials, which summarized the jail rules and regulations,
apparently stated without qualification that outgoing mail was not
monitored. However, the regulations
apparently provide that, while outgoing mail is not ordinarily monitored, it
may be inspected (without notice to the detainee) if there is some affirmative
indication that the inmate presents a security problem. The jail administrative officer explained
that defendant’s letters were read because he was classified as ‘dangerous’ and
an ‘escape risk.’ Furthermore, he
testified that defendant asked him whether outgoing mail was monitored, and the
administrator replied that ‘under normal conditions’ it was not. The administrator nonetheless reminded
defendant of an occasion when the jail captain had testified in a homicide case
regarding the contents of a letter written from jail. For a definitive answer to his question, the
officer referred defendant ‘to his rules and regulations.’†(Phillips,
supra, 41 Cal.3d at p. 80.)
