P. v. Richard
Filed 6/4/13 P. v. Richard CA1/5
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opinion has not been certified for publication or ordered published for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
THE PEOPLE,
Plaintiff and
Respondent,
v.
DALE DWAYNE RICHARD,
Defendant and Appellant.
A131685
(
Super. Ct. No. 05-090525-7)
Defendant
Dale Dwayne Richard (appellant) appeals from a judgment of conviction on
multiple felony offenses, seeking reversal based on instructional error and
improperly endorsed the prosecutor’s argument regarding an element of count
ten, effectively directing a verdict on that count. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On
May 22, 2009, a
County Grand Jury returned a bill of indictment charging appellant with the
following felony offenses against Luis Soqui on February 5, 2009:
Code, §§ 211, 212.5, subd. (a))
(count one); kidnapping (§ 207, subd. (a)) (count two);
(§§ 288a, subd. (c)(2), 664) (count three); attempted willful, deliberate,
and premeditated murder (§§ 187, subd. (a), 664, subd. (a)) (count four);
criminal threats (§ 422) (count eight);
(§§ 236, 237, subd. (a)) (count nine); and assault with intent to commit a
felony (oral copulation) during the commission of a first degree burglary
(§ 220, subd. (b)) (count ten). In
addition, the indictment charged appellant with a February 5, 2009 first degree residential robbery
(§ 211, 212.5, subd. (a)) of James Johnson (count five).
appellant had personally used a firearm in the commission of the offense. (§§ 12022.53, subd. (b); 12022.5, subd.
(a)(1).) Appellant entered a plea of not
guilty to all counts.
On
January 6, 2010, prior to
the commencement of trial, appellant’s trial counsel declared doubt as to appellant’s
mental competency and ability to assist in his own defense. (§ 1368, subd. (b).) The trial court suspended criminal
proceedings against appellant and appointed psychologist Jules Burstein under
Evidence Code section 730 to examine appellant and make findings
concerning his competency in accordance with the procedures set forth in Penal
Code section 1368. After reviewing
appellant’s records from a prior hospitalization and his psychiatric records at
the Jail Mental Health Service, meeting with appellant, and interviewing his
mother by telephone, Dr. Burstein found appellant was competent to stand
trial. Among other statements in his
report, Dr. Burstein related “[appellant] has a demonstrated history of manipulative
and defiant behavior in the jail setting which is much more compatible with
individuals suffering from Drug or Alcohol-related disorders or Personality
Disorders, than with psychotic disorders.â€
Dr. Burstein indicated that appellant “was coherent throughout my
interview with him. I saw no evidence of
internal preoccupations, nor of any delusional thinking, nor of any
peculiarities of speech or behavior.â€
Dr. Burstein concluded, however, that appellant “may be inclined to
feign mental illness . . . as a way of demonstrating his
appellant competent to stand trial and reinstated the
“is presently able to understand the nature and purpose of the proceedings
taken against him and is able to assist and cooperate with counsel in
presenting a defense.â€
Trial
commenced on November 1, 2010. On
November 18, a jury found appellant guilty of all counts and found true the
allegations he used a firearm in committing the offenses. As to count four, the jury found appellant
did not act willfully, deliberately, and with premeditation.
The
trial court sentenced appellant to a term of life in state prison with the
possibility of parole for count ten, and imposed consecutive terms totaling 21
years 8 months for counts four and five and the related firearm
enhancements.
title="">[4]
Appellant
filed a timely notice of appeal from the judgment of conviction.
Because
of the nature of appellant’s appellate arguments, we provide an abbreviated
recitation of the evidence presented at trial.
The Prosecution’s
Case
1.
Offenses Against Luis Soqui
Soqui
testified that at approximately 11:30 p.m. on February 5, 2009, he arrived at
the apartment complex where he lived in Pittsburg. As Soqui was walking up the stairs to his
apartment, appellant came out of the bushes, followed him up the stairs, and
asked him for a lighter. Soqui told
appellant he did not smoke, then turned and continued walking up the
stairs. Appellant said, “Hey,†and when
Soqui turned back, appellant pointed a gun at his face and said, “Give me your
money.†Soqui said he did not have any
money and took out his wallet to show appellant. Appellant asked what Soqui had in his
apartment, and Soqui replied he did not have much. Appellant said, “We gonna find out. Let’s go.â€
Soqui entered his apartment, and appellant followed, keeping the gun
pointed at him. Once inside, appellant
locked the door and told Soqui, “ ‘If you try anything, I’m going to shoot
you right now.’ â€
Appellant
then went into the bathroom. Soqui heard
a “metal to metal sound†“like[] bullets going inside a revolver.†When appellant came out of the bathroom, he
pointed the gun at Soqui and started looking through the bedroom drawers,
asking Soqui if he had any money. Soqui
said he did not have any money.
Appellant stood up and put the gun to Soqui’s chest, pulled the hammer
back, held the gun there for 15 seconds, and pulled the trigger. Soqui heard a click, but the gun did not fire.
Soqui wrestled with appellant and pinned him against a window. Appellant said, “Okay. Okay.†and stopped fighting. Soqui told him, “Take anything you want. Just let me go.†Appellant searched the bedroom and living
room and took Soqui’s jewelry, including a silver chain with a “P†emblem and
diamond earrings. Appellant ran to the
kitchen, grabbed an eight-inch knife and some garbage bags, and returned to the
bedroom. He told Soqui, “Just put
everything in the bags.†Soqui complied.
Appellant
then sat down on a computer chair, with the gun in one hand and the knife in
the other. He “was looking right at
[Soqui]†and told Soqui “to suck his dick.â€
Soqui said, “[M]an to man, just let me go . . . . You get all the things you want
. . . . I won’t go to the
police or nothin’. Just let me go.†Soqui started walking towards the apartment
door. Appellant stood up and said, “Fuck
your man to man. Suck my dick.†Soqui saw that appellant’s penis “was just
hangin’ out†of his pants. When Soqui
reached the door, appellant said, “I’m not playin’. I’m not playin.’ I’m going to shoot. I’m going to shoot.†Soqui told him, “You know what, I’m not gay,
dude. Go ahead, shoot me,†and started
to open the door. With the gun in one
hand and the knife in the other, appellant ran to get between Soqui and the
door. Soqui pushed appellant out of the
apartment and was able to shut the door.
Soqui
waited two minutes, grabbed a knife for protection, then ran to his car and
drove to tell police. A short time later,
he flagged down a police officer.
2.
Joseph Finister
Joseph
Finister testified that at about 12:15 a.m. the same night, he heard banging on
the door of his apartment in Pittsburg.
When he got up to see who it was, appellant asked him to come out. Finister declined and closed the door.
3.
Robbery of James Johnson
Appellant
subsequently went to the apartment of Melissa Waldecker. Waldecker’s boyfriend, Johnson, testified
that he and Waldecker were smoking outside her apartment around 12:30 a.m. Johnson said appellant “came at [him] and
pointed a gun at [him],†and told him to empty his pockets and “[g]ive me
everything you got.†Johnson said he did
not have any money but had “some trees†(i.e., marijuana). Appellant took Johnson’s wallet and cell
phone and told him to get the marijuana.
Johnson and Waldecker went inside the apartment; appellant walked behind
them with his gun pointed at Johnson. As
they entered, Waldecker went to the living room; Johnson went to a bedroom in
the back and shut the door. Appellant
tried to force the door open, but Johnson held it shut. Waldecker corroborated Johnson’s
testimony. She saw appellant run out
carrying her DVD player.
4.
Subsequent Events That Night
John
Aliotti testified that just after 12:30 a.m. the same night, appellant knocked
on the door of his apartment at 161 Diaz Circle in Pittsburg. When Aliotti opened the door, thinking
appellant was a neighbor, appellant said he was lost and asked for directions. Appellant pulled his jacket back, and Aliotti
saw that he had a gun in his right hand.
The gun was pointed at Aliotti’s chest.
Aliotti slammed the door, and his wife called 911.
Appellant
then went to the home of his aunt, Catherine Jones, who also lived on Diaz
Circle. Jones testified that appellant
asked her if she wanted a DVD player, but she told him she did not want it “and
to get it out of [her] house.†She
agreed to give appellant a ride home, and they got in her son’s car, a white
Camaro. Appellant was riding in the back
seat. Police stopped the car as she was
backing out.
Pittsburg
Police Officer Gabriel Palma testified that he was dispatched to 161 Diaz
Circle at approximately 12:38 a.m. that night for a report of an attempted
robbery at the residence. As Palma was
walking to the residence from his patrol car, he noticed a white Camaro backing
out of a parking stall; through the driver’s window, he observed a person in
the back seat who matched the description of the suspect in the robbery.
saw a revolver on the seat where he had been sitting, and found it was loaded
with six 45-caliber rounds. Nothing in
the gun’s appearance indicated to the officer that it was not operational. Palma found Johnson’s cell phone in the car,
and found Waldecker’s DVD player during a consensual search of Jones’s
residence. Jones told him appellant had
brought it there.
A photograph taken
of appellant after his arrest showed him wearing the “P†necklace taken from
Soqui.
At
3:42 a.m. that night, Soqui identified two people, including appellant, as
possible suspects in a photo lineup.
Johnson and Finister also identified appellant in photo lineups that
night. Waldecker identified appellant in
an infield lineup; when appellant heard she had identified him, he started
yelling and she recognized his voice as well.
The Defense Case
Catherine
Currier, a criminalist at the Contra Costa County Sheriff’s Office Crime Lab
and an expert in firearm function and operability, testified that appellant’s
gun appeared operable on initial inspection and “dry firing.†Upon closer inspection, however, Currier
noticed that the firing pin was broken, preventing the gun from expelling a
bullet. Currier acknowledged on
cross-examination that, without her years of training, she would not have known
the firing pin was broken.
Appellant
testified in his own defense. His
testimony was rambling, difficult to follow, and at times nonsensical. Respondent aptly describes it as
“non-responsive and fanciful,†and states, “[a] considerable portion of [t]his
testimony was simply nonsensical or gibberishâ€; outside the jury’s presence,
the trial court characterized appellant’s testimony as “babbling.†Appellant referred to himself repeatedly as an
angel and stated, “I am the chosen one.
The chosen one. I am God, tryin’
to save the world.†He maintained a Mike
June, who was a “demon,†and “the devil,†was “in [his] head†and either
committed the offenses, forced him to commit the offenses, or committed the
offenses with him; appellant said no one saw Mike June because he was a
“ghost.†Appellant said he had a gun
because he “was tryin’ to scare the demons.â€
He once asked, “You hear them trains?â€; another time, he said, “I need
my meds, man.†He rocked back and forth
while testifying.
Appellant
said he was on drugs at the time of the alleged offenses but he essentially
admitted the events alleged. At the
outset of his testimony, his attorney stated, “Now you’ve heard all the
testimony,†and before he could ask a question, appellant said, “It’s
true. It’s true. I did it, man.â€
Appellant
admitted going into Soqui’s apartment and pulling a gun on him, but said he
knew the gun did not work. When asked
what he did in Soqui’s apartment, appellant replied, “Everything
. . . that Soqui — Luis said.â€
He admitted loading the gun and taking jewelry from Soqui’s bedroom,
including a “P chain†and diamonds. He
denied threatening to kill Soqui but said, “The devil told him that.†He denied pulling his penis out and telling
Soqui to “suck [his] dick,†but stated, “The devil did that. Mike June did that.â€
Appellant
also admitted he had a gun when he went to the apartments of Finister and
Johnson. He admitted he chased
Johnson: “Yeah, the dude was runnin’
from me, man, because I was tellin’ him, ‘Give me weed. Give me weed.’ †Appellant said, “I had a big gun in my
hand.†He claimed Mike June took
Waldecker’s DVD player but admitted giving this item to his aunt.
Appellant
contested only two of the charges — counts four and ten; defense counsel
maintained in closing arguments that appellant did not intend to kill Soqui and
did not assault him with the intent to commit a sex offense.
DISCUSSION
I. The
Alleged Instructional Error
Appellant
challenges Special Jury Instruction No. 225a (SJI No. 225a), which the trial
court gave the jury sua sponte to address his apparent mental state during
trial.
A.
Relevant Background
Noting
appellant’s “highly unusual conduct†while testifying, the trial court stated,
“Nine out of ten lay people would sit here, listen to [appellant’s testimony]
and think that this was a case where they should decide sanity.†“Something has to be said to the jury that
they don’t think they’re supposed to acquit because this is the way [appellant]
is now.†Although the court stated its
belief appellant’s behavior was an “act,†it expressed concern that “[a] lay
jury is sitting there thinkin’, ‘This guy’s crazy.’ They don’t have the experience with mental
illness to know one way or the other.
And I think the only instruction I have to give is that there is no
issue before them as to the mental competency of this defendant on this
date.†Over defense objection, the trial
court gave SJI No. 225a: “The jury is
not to concern itself with the present mental state of the defendant. That issues lies only with the trial court
and there are protections for the defendant both before and after trial. Questions of present competence of the
defendant should have no part in the jury deliberations excepting as how it
might effect [sic] evaluation of the
defendant’s testimony or provide evidence to determine the issues that are
presented for jury determination, i.e., the situation at the time of the
alleged crimes.â€
Immediately
after giving SJI No. 225a, the trial court instructed the jury under CALCRIM
No. 226, the standard instruction for determining the credibility of witnesses.
B.
Analysis
Appellant
contends the court erred in giving this instruction for several reasons.
First,
he argues, in giving this instruction, the trial court improperly “singled
[him] out . . . and instruct[ed] on how his evidence should be
considered.†(See People v. Harris (1989) 47 Cal.3d 1047, 1099 [“It is improper
. . . for the court to single out a particular witness in an
instruction, since by so doing the court charge becomes a comment on how the
evidence should be considered, rather than a general instruction on a defense
theoryâ€], disapproved on another ground in People
v. Wheeler (1992) 4 Cal.4th 284, 299, fn. 10.) We disagree.
The trial court’s instruction reasonably informs the jury that it could
consider his present competence in evaluating his testimony, but it does not
instruct the jury as to how that testimony should be considered or indicate
that it should be considered differently than the testimony of any other
witness. CALCRIM No. 226, the
neutral instruction that immediately followed SJI No. 225a, informed the jury
how to consider the testimony of all the witnesses.
Appellant
contends CALCRIM No. 226 would have been sufficient to guide the jury in its
evaluation of witness credibility and that the trial court, in reading SJI No.
225a, suggested to the jury there were questions about appellant’s present
competence as a matter of law. But
CALCRIM No. 226 alone would not have informed the jury whether and how it could
consider the issue that appellant’s behavior placed squarely before it, namely,
his sanity. SJI No. 225a does so without
conveying the trial court’s view of his testimony.
Second,
appellant argues SJI No. 225a conflicts with CALCRIM No. 226, and confused the
jury as to how it should evaluate witness credibility. (See People
v. Hall (1984) 157 Cal.App.3d 538, 546 [trial court must avoid giving
instructions that are inconsistent or would tend to confuse the jury].) We see no conflict between these instructions
and no potential for confusion. Unlike
CALCRIM No. 226, SJI No. 225a simply informs the jury it may consider
appellant’s present mental state and competence in evaluating his
testimony. CALCRIM No. 226 instructs the
jury on other considerations impacting that evaluation.
Appellant
argues his present mental state cannot be divorced from the jury’s evaluation
of his credibility, and that SJI No. 225a would have led the jury to ignore
essential credibility factors stated in CALCRIM No. 226 in evaluating
appellant’s testimony or to leave this credibility determination to the trial
court. We disagree. Even assuming, as respondent appears to
concede, that SJI No. 225a is ambiguous, the question is whether there is a
reasonable likelihood the jury misunderstood and misapplied the
instruction. (People v. Smithey (1999) 20 Cal.4th 936, 963-964.) In making this determination, we view the
instruction in the context of the overall charge (People v. Letner and Tobin (2010) 50 Cal.4th 99, 182), and presume
the jurors “are intelligent persons capable of understanding and correlating
all jury instructions that are given†(People
v. Phillips (1985) 41 Cal.3d 29, 58).
Applying these principles, we do not find it reasonably likely that SJI
No. 225a led the jury to disregard the specific credibility factors set forth
in CALCRIM No. 226 in evaluating appellant’s testimony. For the same reasons, we reject appellant’s
contentions that (1) the jurors were confused by the court’s use of the phrases
“present mental state†and “questions of present competenceâ€; and (2) the
instruction violated his rights “to testify on his own behalf†and “to have his
testimony judged by the same standards as the testimony of the other
witnesses.â€
In
any event, any error in giving the instruction was harmless. Whether we utilize the standard set forth in
836 (Watson) (erroneous instruction
requires reversal only if it is reasonably probable the jury would have reached
a result more favorable to appellant if the instruction had not been given) or
the standard set forth in Chapman v.
California (1968) 386 U.S. 18, 24 (Chapman)
(instructional error that constitutes federal constitutional error is
reversible unless harmless beyond a reasonable doubt), we conclude the
overwhelming evidence of guilt in this case renders the error harmless.
Finally,
appellant challenges the portion of the instruction that states, “there are
protections for the defendant both before and after trial,†contending this
statement “was incompatible with the guarantee of
the jury to speculate on future events and consider the disposition of his
case. He maintains this language could
have led jurors to believe he had been given a break due to his mental
condition before trial (i.e., lesser charges), or that he would be treated
leniently after trial, allowing improper factors to influence their verdict.
“[W]hen
a jury has no sentencing function, it should be admonished to ‘reach its
verdict without regard to what sentence might be imposed.’ [Citation.]â€
(Shannon v. United States
(1994) 512 U.S. 573, 579, fn. omitted.)
Jurors are “not to be concerned with the question of penalty, punishment
or disposition in arriving at a verdict as to guilt or innocence.†(People
v. Allen (1973) 29 Cal.App.3d 932, 936.)
These principles reflect the division of labor between judge and jury;
as the jury’s sole function is to find the facts and to decide whether the
defendant is guilty of the crime charged, “[i]nformation regarding the
consequences of a verdict is . . . irrelevant to [its] task.†(Shannon,
at p. 579.) “[P]roviding jurors sentencing
information invites them to ponder matters that are not within their province,
distracts them from their factfinding responsibilities, and creates a strong
possibility of confusion. [Citations.]†(Ibid.)
SJI
No. 225a does not run afoul of these principles. The challenged language does not implicate
the consequences of the jury’s verdict, improperly divert the jury’s attention
away from its task, or encourage the jury to engage in speculation regarding
the outcome; indeed, the instruction states that it is for the trial court
alone to determine whether the relevant protections apply and specifically
directs the jury not to concern
itself with appellant’s mental state except as it relates to issues properly
before it. We also observe that the trial
court instructed the jury under CALCRIM No. 3550, “You must reach your verdict
without any consideration of punishment.â€
The jury is presumed to have followed this instruction. (People
v. Tully (2012) 54 Cal.4th 952, 1047, fn. 34 (Tully).)
Appellant
also contends the challenged language diluted the jury’s sense of
responsibility and rendered its verdict arbitrary by introducing “an
unquantifiable factor into the deliberation process.†He argues the instruction could have caused
jurors to resolve doubts regarding his guilt against him, “figuring that any
error they made in that determination would later be tempered or corrected by
other authorities.†For this
proposition, he relies on authority applicable to sentencing juries in capital
cases, holding it is error to instruct the jury that the trial court can reduce
a death sentence to life and that the governor has the power to commute a
sentence because such instructions “thrust [a jury’s attention] into
speculation about the future action of [others]†and create a serious
possibility of imposing an arbitrary sentence that is the product of the
interjection an unquantifiable factor into the deliberation process. (People
v. Ramos (1984) 37 Cal.3d 136, 157; People
v. Morse (1964) 60 Cal.2d 631, 649; People
v. Mitcham (1992) 1 Cal.4th 1027 1077.) Even assuming this authority is applicable
during the guilt phase of a noncapital case, SJI No. 225a cannot reasonably be
construed to have steered the juror’s attention away from appellant’s guilt or
innocence, toward any future proceedings addressing appellant’s mental
state. The challenged language speaks
only in general terms of “protections†relating to questions about appellant’s
mental state and does not undermine the significance of the jury’s own responsibility
to render a verdict; in context, the instruction simply delineates the
respective responsibilities of the court and the jury.
SJI No. 225a did
not render appellant’s trial fundamentally unfair or deprive him of due
process.
II. The
Alleged Directed Verdict
Appellant
also argues the trial court’s ruling on defense objections during argument was
tantamount to a directed verdict on count ten.
A.
Relevant Background
Assault
with intent to commit forcible oral copulation requires proof that “[t]he
defendant did an act that by its nature would directly and probably result in
the application of force to a person.â€
(CALCRIM No. 890.) In her
rebuttal closing argument, the prosecutor argued that she had shown assaultive
conduct by “[t]he mere fact of the defendant having that knife out with that
gun that night as he’s sitting there in that chair, . . . Soqui on
the other end. If you ask yourself did
he do an act that by its nature would probably result in the application of
force to that person, the answer’s yes.
[¶] The act of pulling that knife and presenting it in front of the
[victim], the fact of brandishing it alone is enough to constitute assault.â€
Defense
counsel objected, stating, “I think that’s an incorrect statement of the
law.†The trial court overruled the
objection, stating, “I think it’s an accurate statement, the first part. Brandishing is questionable though.â€
The
prosecutor continued, “The act of pulling it out alone is enough as the judge
just said. [¶] . . . [¶] [T]he People are not required to
prove defendant actually touched someone.
The mere fact that he had that knife, the mere fact that he could use
it, the mere fact that if he got up and came towards . . . Soqui with
that knife is enough to satisfy that element.
He doesn’t need to wield it at him.
He doesn’t need to come towards him.
The fact that he’s got it there at the ready is enough. [¶] . . . [¶] . . . The fact that he has that knife out is enough
to satisfy the element of did he do an act that by its nature would directly or
probably result in the application of force to someone. There doesn’t need to be touching
involved. He doesn’t need to come at
him. [¶] And I would submit to you
that [Soqui] told you [appellant] had the gun, he had the knife, he said, ‘Suck
my dick,’ and that logically . . . Soqui would be sitting there
thinking, ‘If I don’t do what he asks, . . . I could be stabbed,’ and
that’s enough to constitute assault under this definition.â€
“I believe that’s an incorrect statement of the law.†The court overruled the objection.
B.
Analysis
Appellant
contends the trial court effectively removed an element of the assault offense
from the jury’s consideration when it “indicated . . . the prosecutor
had correctly stated the law by stating that the mere fact of appellant having
the knife out while sitting in the chair constituted the requisite act.â€
“ ‘The
Constitution gives a criminal defendant the right to have a jury determine,
beyond a reasonable doubt, his guilt of every element of the crime with which
he is charged.’ [Citation.]†(People
v. Moore (1997) 59 Cal.App.4th 168, 179.)
Instructing the jury that an element of the offense is established as a
matter of law constitutes a partial directed verdict. (People
v. Lawson (1987) 189 Cal.App.3d 741, 744.)
A trial court “ ‘may not direct a verdict of guilt no matter how
conclusive the evidence.’
[Citations.]†(
724.) In a criminal case, “ ‘[n]o
fact, not even an undisputed fact, may be determined by the judge.’ [Citations.]â€
(Ibid.)
We
find no violation of these principles in this case. Unlike the authority on which appellant
relies, the trial court in this case did not instruct the jury that an essential
element of the offense had been established.
The trial court’s statement in ruling on the first defense objection can
be construed only as a confirmation that the prosecutor had correctly stated
the law in the argument to which the defense objected, namely, that “[t]he act
of pulling that knife and presenting it in front of the [victim]
. . . is enough to constitute assault.†No reasonable juror would have construed the
trial court’s statement as a finding the act requirement had been met or
concluded the court was removing the element from the jury’s
consideration. At most, the court’s
statement amounted to an additional instruction on what is required to meet the
act requirement of assault.
name="_ftnref11" title="">[11] Appellant has failed to present any authority
or reasoned analysis showing the prosecutor misstated the law of assault.
In
overruling the second defense objection, the court simply declined to find the
prosecutor had misstated the law in relying on Soqui’s subjective mental state
to establish assault. Regardless of
whether the prosecutor accurately stated the law in this regard,
no reasonable juror would have understood the trial court’s ruling as informing
the jury “the assault act element had been established as a matter of law,†as
appellant contends.
III. Prosecutorial
Misconduct
Appellant
contends the prosecutor committed misconduct during
in evidence. The prosecutor argued that,
when Soqui decided to run for it, appellant jumped up and followed him to the
door and “tried to wedge himself between the door and . . . Soqui
playin’ with you. Suck my
dick.’ †Defense counsel objected,
contending the last statement was not in evidence. The trial court overruled the objection,
stating, “I’ll let the jury decide what the evidence was.â€
Appellant
contends the prosecutor’s argument constitutes misconduct because Soqui never
testified that appellant said, “Suck my dick†while he was with appellant at
the front door and, in fact, specifically testified that appellant made no
statements at all in the doorway. He
maintains this argument “gave the jury an alternative factual theory to rely
upon. Jurors who had doubts that
appellant committed an assaultive act by merely holding the knife while sitting
in the chair, could now rely on the prosecutor’s ‘testimony’ that appellant
also said, ‘Suck my dick’ (while having the knife and struggling with Soqui) at
the door.â€
Respondent
concedes the prosecutor erred in making this argument, acknowledging “appellant
made those statements when sitting in the chair and when approaching the
doorway,†not while he was wedged in the doorway. Respondent contends, however, that this error
does not rise to the level of misconduct.
We need not decide this question.
Assuming, without deciding, that the prosecutor’s statement constitutes
misconduct, we find no prejudicial error under Watson, supra, 46 Cal.2d 818.
prosecutor’s misstatement of the evidence in overruling the defense objection;
the court indicated, rather, that it was up to the jury to decide whether the
alleged facts were in evidence. Defense
counsel later clarified the state of the evidence during argument: “What happens after that when [appellant’s]
sitting in the chair? Now, this item
will be a matter of dispute. [S]oqui
says, ‘I’ve had enough. I’m out of
here,’ goes to the door. [Appellant],
while still back in the chair, says, ‘I’m not playin’. I’m gonna shoot you. I’m gonna kill you.’ [Appellant] runs to the door, wedges himself
in between. [The prosecutor] says that
he again all the way is saying, ‘Suck my dick,’ and that’s not true. [¶] And this is the point where you may
actually have to look at the transcript because what . . . Soqui said
is no more statements were made at that door, nothing. No statements were made after [appellant] was
on the chair and said, ‘I’ll kill you.’
Nothing.†The trial court’s
instructions also informed the jury: “You
must decide what the facts are in this case.
You must use only the evidence that was presented in this
courtroom. . . .
[¶] Nothing that the attorneys say is evidence. In their opening statements and closing
arguments, the attorneys discuss the case, but their remarks are not
evidence. . . . Only the
witnesses’ answers are evidence.†We
presume the jury followed the trial court’s instructions. (Tully,
supra, 54 Cal.4th at p. 1047, fn.
34.) We therefore find no reasonable
probability the jury would have reached a result more favorable to appellant on
the assault charge without the alleged misconduct.
DISPOSITION
The
judgment is affirmed.
SIMONS,
Acting P.J.
We concur.
NEEDHAM, J.
BRUINIERS, J.
the Penal Code.
two offenses committed on February 13, 2009, receiving stolen property
(§ 496, subd. (a)) (count six), and misdemeanor petty theft (§§ 484,
488) (count seven), which were later dismissed.
