P. v. Perrault

Filed 1/27/10 P. v. Perrault CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Michael Perrault appeals from a judgment upon a jury verdict finding him guilty of first degree murder (Pen. Code,  187). The jury further found that defendant personally used a firearm causing great bodily injury or death (id.,  12022.53, subds. (b), (c) & (d)). Defendant contends that the prosecutor committed prejudicial misconduct in his closing argument and that his trial counsel was ineffective because she failed to argue imperfect self-defense and did not request a special instruction on self-defense. We affirm.

I. FACTS

On the evening of March 4, 2006, defendant was at his home on Kendall Street in Crockett when he received a call from Curtis Carr. Defendant had known Carr since they were children. Carr was present when defendants best friend, Nicholas Schwind, was killed. Steven Contestable was identified as a possible suspect in Schwinds murder, but had not been arrested. Defendant was upset about Schwinds murder and wanted to kill anybody that had anything to do with it.

Defendant agreed to meet Carr at the Sizzler restaurant. After defendant spoke with Carr, Jack Simmons and Simmonss friend, James Newman, stopped by defendants apartment to hang out. Defendant was upset by Carrs call and left the apartment in a hurry. Simmons and Newman followed him out of the apartment and attempted to follow defendant. Defendant drove away fast in a Dodge Intrepid. Defendant called Simmons and told him he was on his way to Sizzler to go take care of some business. Simmons and Newman then drove toward Sizzler.

That evening, several witnesses in the vicinity of the Sizzler restaurant heard shots near the entrance to the restaurant and saw an Intrepid flee from the scene. Immediately after hearing the shots, Bobby Mask, who was in the restaurant, ran out and saw Carr laying on the ground near the entrance to the Sizzler. Carr had a cell phone in his hand. Mask returned to the restaurant and told them to call 911. Officer Shilo Olson responded to the scene. Olson approached Carr and found him lying on his back. He was not moving and his hands were above his head. He had a loaded firearm tucked into the front of his pants that was clearly visible. Olson saw that Carr had a cell phone by his right hand and that a set of keys was near his left shoulder. The cell phone showed that a call was made to or received from defendants cell phone number at 9:03 p.m.

Meanwhile, Simmons and Newman opted to drive to the Motel 6, which was to the left of the Sizzler restaurant, because Simmons saw a police car in the restaurants parking lot. As they arrived at the Motel 6 parking lot, Simmons received a phone call from defendant in which defendant might have told him that he took care of business and killed Carr. Defendant sounded scared and told him, well, leave go, go, go.

Defendant returned home and told his girlfriend, Candace Wright,  its done.  She thought he meant that something had happened between him and Carr. Defendant seemed relieved. He told Wright that they needed to get rid of the Intrepid and told her he was worried about it many times over several days. Wright eventually arranged to have the Intrepid returned to the broker from whom she purchased it. In the days after Carr was killed, Wright overheard defendant tell his friends, that Curtis screamed like a girl and Curtis died on an empty stomach. Defendant seemed proud of what he had done. He subsequently threatened Wright and prevented her from seeing her family and friends. She wanted to break up with him but defendant threatened to kill her and told her, were in this together. He claimed that everything he did was for Schwind.

On March 31, 2006, the police served a search warrant on defendants apartment. Before the police entered the apartment, defendant threw his SKS rifle and clip out of the bedroom window. The police recovered several silencers and various types of ammunition from the apartment. In addition, they found the SKS rifle loaded with ammunition and an attached scope directly below defendants apartment window. Defendant was arrested for Carrs murder.

Prior to trial, defendant denied any involvement in Carrs shooting. Upon his arrest, however, his outgoing telephone calls were monitored. In a conversation with Simmons, he told Simmons that they did not have the gun but they got one of my rounds. Defendant spoke with Simmonss mother who told him to say that he was with her in Martinez at the time of the shooting.

Defendant subsequently called Simmons again and asked him to talk with Wright about his alibi that he was in Martinez with Simmons and his mother at the time of the shooting. He also called his grandmother and told her about the alibi.

The police arrested Simmons and his mother for being accessories after the fact of murder. In his interview with police, Simmons expressed that he was scared of defendant. Simmons told the police that defendant admitted to him that he killed Carr. He told the police that he thought he would be killed when he left the police department. At trial, when questioned about a subsequent interview with the district attorney, Simmons testified that defendant maybe told him something like he pulled up, Curtis came up to the car and he said like nice parking or something, and then he just shot him. He said he shot him pop, pop, pop, pop . . . . Simmons further testified that after he gave a statement to the district attorney, his truck was hit and totaled on the left side while it was parked in front of his house. Someone told him that the hit was in retaliation for his cooperation with the police.

Defendant also admitted that he shot Carr to Michael Wilson, an acquaintance he spoke with in jail.

Carr suffered five gunshot wounds. The cause of death was a gunshot wound of the torso. The trajectory of the wounds was consistent with a person firing from inside a vehicle at a person bending or leaning into the vehicle.

At trial, defendant acknowledged the evidence that he killed Carr was overwhelming, and claimed he initially lied that he was not involved because he did not want his grandparents to know. He testified that he drove into the parking lot of Sizzler and saw Carr, standing by his Toyota 4-Runner. Carr then walked toward defendants car and stood on the sidewalk near the front of the restaurant. Carr said something and then put his hand under his shirt. Defendant saw the handle of a gun under Carrs shirt, thought Carr was going for his gun, and shot him. He did not know how many times he shot him.

II. DISCUSSION

A. Prosecutorial Misconduct

Defendant contends that the prosecutor committed misconduct during closing argument by stating: And I could say right from the get-go that is the biggest liar I have ever seen, Mr. Perrault. Defendants claim does not withstand scrutiny.

 As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashionand on the same groundthe defendant made an assignment of misconduct and requested that the jury by admonished to disregard the impropriety. [Citation.]  (People v. Hill (1998) 17 Cal.4th 800, 820 (Hill), quoting People v. Samayoa (1997) 15 Cal.4th 795, 841.) Here, defendant did not object to the alleged misconduct below; we, however, review the issue in light of the fact that defendant claims his trial counsel was ineffective for failing to object to the argument.

Defendant argues that the prosecutors comment that defendant was the biggest liar I have ever seen constituted evidence not in the record and resulted in the prosecutor expressing his personal belief in the merits of the case. A prosecutors reference to facts not in evidence constitutes misconduct because it has a tendency to make the prosecutor his own witness. (Hill, supra, 17 Cal.4th at pp. 827‑828.) Thus, the prosecutors remark, to the extent it might have been interpreted to mean, as defendant suggests, that his statement was not limited to the case before the jury, was objectionable. But the comment could also be construed to constitute fair comment on the evidence. There was substantial evidence in the record that defendant lied.

A prosecutor is given wide latitude during closing argument.    The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.    (Hill, supra, 17 Cal.4th at p. 819.) Hence, while it is misconduct for a prosecutor to express his personal belief in the veracity of a witness (People v. Johnson (1981) 121 Cal.App.3d 94, 102-103), in this case, there was direct evidence that defendant had lied throughout the investigation of the case and that his story changed only when faced with the overwhelming evidence against him. Thus, the prosecutors remark was warranted by the evidence. Similarly, defendants claim, that the prosecutors argument that Curtis Carr had his phone in one hand, and his keys in the other, and the defendant blew him away, was not based on the evidence, fails. This argument was based on legitimate inferences from the record and did not constitute misconduct.

Even if we were to construe the prosecutors argument as defendant suggests, we cannot conclude that defendant was prejudiced by the prosecutors remarks in light of the overwhelming evidence of defendants guilt. Prosecutorial misconduct requires reversal only when, viewing the record as a whole, it results in a miscarriage of justice. (People v. Green (1980) 27 Cal.3d 1, 29.)

B. Imperfect Self-defense

Defendant argues that his counsel was ineffective because she failed to argue imperfect self-defense during closing argument. He also raised this issue in support of his motion for new trial. Defendants argument lacks merit.

The People submitted the declaration of defense counsel in opposition to defendants motion for a new trial. In the declaration, defense counsel explained that [a]fter discussing all of the possible defenses to the charge of murder with Mr. Perrault, including the fact that his own statements precluded arguing he wasnt the shooter, Mr. Perrault wanted me to argue the available defense most likely to gain him an acquittal. That defense was self-defense.

Hence, the record is clear that defendant, together with his counsel, agreed on a tactical strategy of arguing for a complete acquittal based on self-defense. The decision of how to argue to the jury after the presentation of evidence is inherently tactical; counsels approach comes within the permissible range of competent representation. (People v. Freeman (1994) 8 Cal.4th 450, 498.) Here, counsel was faced with a situation in which her client changed his story after the presentation of the Peoples case and chose to testify that he killed Carr in self-defense. As the trial court explained in denying defendants motion for a new trial, it was not defense counsels strategy in closing argument that was problematic, but rather defendants lack of credibility to support his 11th hour claim of self-defense. The fact that the jury did not accept [defendants] testimony again is not a result of [defense counsels] failure, but a result of Mr. Perraults lack of credibility based on his own conduct, his multiple lies, his efforts to lie to others and create alibis and his admitted changing stories throughout the investigation and throughout the trial up until the time he testified.

Moreover, contrary to defendants contention, arguing imperfect self-defense would not have been to his benefit given his testimony at trial. Defendant posits that defense counsel could have argued that defendant unreasonably mistook the cell phone Carr was holding for a gun. But defendants testimony was that he saw Carr reach for his gun, and he never mentioned that he thought Carrs cell phone was a gun. Given defendants testimony, it is unlikely that the jury would have accepted the theory that defendant acted on the unreasonable belief that he feared Carr was armed. As the trial court found, both theories hinged on Mr. Perraults credibility and that was severely damaged in this trial. The jury, however, was instructed on imperfect self-defense and we must presume that the jury understood and correlated all of the instructions presented.[1] (People v. Pinholster (1992) 1 Cal.4th 865, 919 (Pinholster).) In light of the overwhelming evidence of defendants guilt, it is not reasonably probable that a different verdict would have been reached had counsel adopted a different strategy in her argument to the jury. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694; People v. McPeters (1992) 2 Cal.4th 1148, 1187.)

C. Special Instruction on Self-defense

Defendant argues that since the prosecution proceeded on two theories of first degree murderpremeditated murder and murder in a drive-by shootingdefense counsel should have requested a special instruction indicating that self-defense and imperfect self-defense applied as defenses to a drive-by murder. An additional instruction was not required.

The jury was instructed on premeditated murder and murder perpetuated by discharging a firearm from a vehicle as well as the defenses of self-defense and imperfect self-defense. Contrary to defendants argument, it was not likely that the jury was confused and did not understand that both defenses also applied to murder in a drive-by shooting. While defense counsel argued that this case was not a typical drive-by shooting case because it did not involve a car driving up to a group of people and someone in the car shooting at the crowd or an exchange of gunfire between two moving cars, she sought to show that defendant did not have the specific intent to kill when he drove to Sizzler to meet Carr. Her argument was consistent with the defense theory of the case that defendant only shot Carr in self-defense when he thought Carr was going for his gun. Defense counsels argument did not mandate an additional instruction on self-defense as it applied to drive-by murders. We presume that the jurors understood and followed the courts instructions. (Pinholster, supra, 1 Cal.4th at p. 919; People v. Scott (1988) 200 Cal.App.3d 1090, 1095.) Here, the instructions as a whole adequately informed the jury of the relevant legal principles of the case. (See People v. Kegler (1987) 197 Cal.App.3d 72, 80 [court must consider instructions as a whole in determining whether error was committed in not giving a specific instruction].) No further instructions were warranted.

III. DISPOSITION

The judgment is affirmed.

________________________

RIVERA, J.

We concur:

___________________________

REARDON, Acting P.J.

___________________________

SEPULVEDA, J.

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[1] The trial court gave CALJIC Nos. 5.12 and 5.17, the standard instructions on self-defense and imperfect self-defense, respectively.