P. v. Sedej
Filed 3/29/13 P. v. Sedej CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JOHN MICHAEL SEDEJ,
Defendant and Appellant.
D056955, D057783
(Super. Ct.
No. SCD207881)
CONSOLIDATED
APPEALS from a judgment of the Superior
Court of
County, Melinda J. Lasater, Judge. Affirmed in part, reversed in part.
A jury convicted John Michael Sedej
of committing gross vehicular manslaughter
while intoxicated, causing the death of Nancy Ramirez (Pen. Code, § 191.5,
subd. (a); count 1); driving under the influence of alcohol causing bodily
injury (Veh. Code, § 23153,
subd. (a); count 2); and, driving while having a blood alcohol level of 0.08
percent or more causing bodily injury
(Veh. Code, § 23153, subd. (b); count 3).
It found the following allegations to be true: While Sedej was driving, he proximately
caused bodily injury or death to more than one victim, to wit, Patricia Ramirez
and Maria Elena Ramirez,
name="_ftnref1" title="">[1] in
the commission of counts 1, 2 and 3 (Veh. Code, § 23558); he personally
inflicted great bodily injury on Nancy
in the commission of counts 2 and 3 (Pen. Code, § 12022.7, subd. (a)); and he drove with a
blood alcohol concentration of 0.15 percent or more in the commission of counts
2 and 3 (Veh. Code, § 23578). As to
count 1, the jury found not true that Sedej personally inflicted great bodily
injury on Patricia. (Pen. Code, §
12022.7, subd. (a).) The court sentenced
Sedej to an aggregate term of six years, staying the sentence on counts 2 and 3
under Penal Code section 654.
name="_ftnref2" title="">[2]
Sedej contends: (1) the convictions for counts 2 and 3 should
be reversed because both are necessarily included offenses of the conviction in
count 1; (2) there was insufficient evidence to support a conviction in count
1; (3) his state and federal constitutional due process and
court's exclusion of evidence; 4) the court erroneously declined his request to
instruct the jury regarding unanimity; (5) the prosecutor committed prejudicial
misconduct during closing arguments; and (6) the court erroneously denied him
probation. We reverse the true findings
on the Penal Code section 12022.7, subdivision (a) enhancements as to Nancy
in counts 2 and 3. In all other
respects, we affirm the judgment.
FACTUAL
BACKGROUND
Prosecution Case
At
approximately 1:15 a.m. on July 13, 2007, Patricia was driving a
Ford Expedition vehicle with her sister, Maria Elena, and her niece, Nancy, as
passengers. Patricia stopped at a red
light at the intersection of La Jolla Village Drive
and Genesee Avenue in San
Diego. When the
light turned green, Patricia resumed driving eastbound on La
Jolla Village Drive. Just then, a vehicle heading southbound on Genesee
crashed into the driver's side of Patricia's vehicle. Nancy
died in the collision. Patricia and
Maria Elena suffered cuts and bruises and required hospitalization.
Alexandra
Rommell and David Villegas were in a vehicle going eastbound on La
Jolla Village Drive, when they saw Sedej run a red
light and crash into Patricia's vehicle.
They called 911, checked on the victims in both cars, and waited until
help arrived.
San Diego Police Department
Detective Suzanne Huntington spoke to Sedej at the hospital at around 3:45 that morning, after administering
warnings under Miranda v.
384 U.S.
436. She asked him how fast he was
driving at the time of the collision and he said, "[A]bout 30 to 40 miles
per hour." She asked him,
"Anything else you want to tell me about tonight [sic]?" He answered,
"I should not have had that glass of wine."
San Diego Police Department Officer
Michael Stone, the lead investigator, arrived at the scene at approximately 1:53 a.m.
He saw Sedej's Acura vehicle, and firemen trying to remove two women
from inside the Expedition. A corpse was
on the street. Officer Stone determined
Sedej had run a red light in violation of Vehicle Code section 21453,
subdivision (a), causing the collision.
Officer Stone testified that under the law, when the traffic light is
red in the direction a motorist is travelling, the motorist must stop.
San Diego Police Department
Criminalist Janine Miller testified she tested two samples of Sedej's blood
drawn at 3:18 a.m. His blood alcohol content measured 0.1975 and
0.1983 percent. Responding to a
hypothetical, Miller testified that a 180-pound male would have had to consume
an average of nine drinks to reach that blood alcohol level. That person would be unable to safely operate
a motor vehicle.
Accident reconstruction specialist
Ernest Phillips prepared two reports. In
the first report, he concluded that at the moment of impact, Sedej's Acura and
the Expedition were travelling at 60.6 and 26 miles per hour respectively. Phillips, however, admitted he had
erroneously identified the Acura's point of rest. He performed a second reconstruction test and
changed the Acura's point of rest, and revised the speed of impact for the
Acura to 20.6 miles per hour and 19.8 miles per hour for the Expedition.
Defense Case
Three accident reconstructionists
testified for the defense. William
Haight estimated the speed at the point of impact was between 45 and 50 miles
per hour for Sedej's Acura, and 25 to 30 miles per hour for the
Expedition. Eugene Vanderpol estimated
the speeds at the moment of impact were 46 miles per hour for the Acura, and 26
miles per hour for the Expedition.
Joseph Awad testified his measurements of the vehicle's position at rest
differed from that of the People's expert.
DISCUSSION
I.
Sedej contends his convictions for driving under the
influence of alcohol causing bodily injury and driving with a blood alcohol
level of 0.08 percent or greater causing bodily injury should be reversed
because they both are necessarily included offenses of his conviction on count
1 for gross vehicular manslaughter while intoxicated.
The California Supreme Court in
considered the issue of "whether separate punishment is permissible where
a defendant, in a single incident, commits vehicular manslaughter as to one
victim . . . and drunk driving resulting in injury to a separate victim." It held, "[W]here, as here, a defendant
commits vehicular manslaughter with gross negligence—an act of violence against
the person—he may properly be punished for injury to a separate individual that
results from the same incident." (
is generally appropriate that a defendant be subject to greater punishment for
committing an offense if his or her commission of that offense causes injuries
to multiple persons." (
1301, 1331.) McFarland is controlling here; therefore, it was not error to
sentence Sedej on count 1 relating to Nancy's
death, and counts 2 and 3 relating to injuries suffered by different victims,
Patricia and Maria Elena.
Sedej
further contends we should strike the accompanying great bodily injury
enhancements on counts 2 and 3 as to Nancy. We agree.
"Under [Penal Code] section
12022.7, subdivision (g), when a defendant is convicted of murder or
manslaughter, that conviction may not be enhanced with the injury the victim of
the murder or manslaughter necessarily suffered. However, injuries caused to
may serve as enhancements under [Penal Code] section 12022.7." (People
v. Julian (2011) 198 Cal.App.4th 1524, 1530.)
another court in this District decided People
v. Cook (March 19, 2013, E054307) ___ Cal.App.4th ___ [2013 WL 1120653],
which held that "imposition of a [Penal Code] section 12022.7, subdivision (a) enhancement with
respect to a victim for whom the defendant has already been convicted of
manslaughter is barred by the express provision of [Penal Code] section
12022.7, subdivision (g)." In light
of the fact Nancy died in the collision, we reverse the
true finding on the great bodily injury enhancements as to her on counts 2 and
3.
II.
Sedej
contends there was insufficient evidence to show he acted with gross negligence
to support his conviction for gross vehicular manslaughter while
intoxicated. He concedes, "The
evidence in this matter established that [he] was driving under the influence
of alcohol and may caused [sic] the
collision by running a red light."
Nonetheless, he maintains, "[T]here were no overall circumstances
related to [his] intoxication or manner of driving that supported a conclusion
that [he] acted with a conscious indifference to the consequences of his
actions."
The test of sufficiency of the
evidence is whether, reviewing the whole record in the light most favorable to
the judgment below, substantial evidence is disclosed such that a reasonable
trier of fact could find the essential elements of the crime beyond a
reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) Substantial evidence is that evidence which
is "reasonable, credible, and of solid value." (Ibid.) An appellate court must "presume in
support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence." (
425.) An appellate court must not
reweigh the evidence (People v. Culver
(1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or
resolve factual conflicts, as these are functions reserved for the trier of
fact. (In re Frederick G. (1979) 96 Cal.App.3d 353, 367).
Furthermore, an appellate court can
reject evidence accepted by the trier of fact only when the evidence is
inherently improbable and impossible of belief.
(People v. Maxwell (1979) 94
Cal.App.3d 562, 577.) "Where the
circumstances support the trier of fact's finding of guilt, an appellate court
cannot reverse merely because it believes the evidence is reasonably reconciled
with the defendant's innocence." (
1741, 1747.)
Penal Code section 191.5
subdivision (a) provides: "Gross
vehicular manslaughter while intoxicated is the unlawful killing of a human
being without malice aforethought, in the driving of a vehicle, where the
driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code,
and the killing was either the proximate result of the commission of an
unlawful act, not amounting to a felony, and with gross negligence, or the
proximate result of the commission of a lawful act that might produce death, in
an unlawful manner, and with gross
negligence."
name="_ftnref4" title="">[4]
Although gross negligence cannot be
shown by the mere fact that the defendant drove a motor vehicle while under the
influence and broke the traffic laws (People
v. Hansen (1992) 10 Cal.App.4th 1065, 1075), it may be shown from all the
relevant circumstances, including the level of intoxication, the manner of
driving, "and any other relevant
aspects of [the defendant's] conduct." (People
v. Ochoa (1993) 6 Cal.4th 1199, 1207.)
"Gross negligence is the
exercise of so slight a degree of care as to raise a presumption of conscious
indifference to the consequences.
[Citation.] 'The state of mind of
a person who acts with conscious indifferences to the consequences is simply, "I
don't care what happens." '
[Citation.] The test is
objective: whether a reasonable person in the defendant's position would have
been aware of the risk involved." (
1036.)
"[A] driver's level of
intoxication is an integral aspect of the 'driving conduct.' A high level of intoxication sets the stage
for tragedy long before the driver turns the ignition key. 'There is a very commonly understood risk
which attends every motor vehicle driver who is intoxicated. [Citation.]
One who willfully consumes alcoholic beverages to the point of intoxication,
knowing that he thereafter must operate a motor vehicle, thereby combining
sharply impaired physical and mental faculties with a vehicle capable of great
force and speed, reasonably may be held to exhibit a conscious disregard of the
safety of others. The effect may be
lethal.' " (People v. Bennett, supra,
54 Cal.3d at p. 1038.)
Here, Sedej's blood alcohol content
two hours after the collision was 0.19 percent.
Four individuals testified he did not stop at the red light as required
by statute. In fact, he admitted to
police the morning of the collision that he was driving at approximately 40
miles per hour when he collided with the Expedition. Such a rate of speed was unreasonable under
the circumstances. We conclude this
evidence is sufficient to support the conviction for gross vehicular
manslaughter while intoxicated.
III.
Sedej contends the trial court
erroneously refused to allow him to impeach Patricia with evidence related to
her immigration status, how she learned to drive, and her possession of a false
Mexican driver's license. He further
contends his cross-examination of her was less effective than it might have
been if the court had permitted him to question her specifically regarding her
use of a false social security number. Accordingly, Sedej contends his constitutional
rights to due process and confrontation under the federal and state
Constitutions were violated because Patricia's credibility was crucial in this
case, and "[t]he excluded evidence would have cast a different light on
Patricia's inconsistent statements at trial."
A.
Evidence Code section 352 provides,
"The court in its discretion may exclude evidence if its probative value
is substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury." It "empowers the trial judge to bar
impeachment of a witness by reference to collateral matter." (People
v. Blackburn (1976) 56 Cal.App.3d 685, 693.) Application of the ordinary rules of evidence
does not impair a defendant's constitutional right to present a defense. (People
v. Boyette (2002) 29 Cal.4th 381, 427-428.)
Although completely excluding evidence of an accused's defense
theoretically could infringe on his right to present a defense, excluding
defense evidence on a minor or subsidiary point does not. (Ibid.)
The trial court must weigh the
probative value against "undue prejudice," not just prejudice. For purposes of analysis, " 'prejudicial' is not synonymous with 'damaging,'
but refers instead to evidence that ' "uniquely tends to evoke an
emotional bias against defendant" ' without regard to its relevance on
material issues." (People v.
Kipp (2001) 26
Cal.4th 1100, 1121.)
" 'The test of relevance is
whether the evidence tends "logically, naturally, and by reasonable
inference" to establish material facts such as identity, intent, or
motive.' [Citation.] In determining the credibility of a witness,
the jury may consider any matter that has a tendency in reason to prove or
disprove the truthfulness of his testimony at the hearing, including but not
limited to: a witness's character for honesty or veracity or their opposites;
the existence or nonexistence of a bias, interest, or other motive; his
attitude toward the action in which he testifies or toward the giving of
testimony; and his admission of untruthfulness.
[Citation.] Past criminal conduct
involving moral turpitude that has some logical bearing on the veracity of a
witness in a criminal proceeding is admissible to impeach, subject to the
court's discretion under Evidence Code section 352." (People
v. Harris (2005) 37 Cal.4th 310, 337.)
A "trial court's exercise of
discretion in admitting or excluding evidence is reviewable for abuse
[citation] and will not be disturbed except on a showing the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of justice." (People
v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
B.
Immigration Status and Driving Skills
Sedej moved in limine to admit
evidence regarding Patricia's status as an undocumented immigrant because it
tended to show "why it was that she would be willing or able to try to
claim that she was not the person at fault at the scene . . . because she
feared the possibility of adverse immigration consequences." He also sought to admit evidence regarding
how she learned to drive: "[I]t's
relevant to whether or not she's capable of operating the motor vehicle and
whether or not she's aware of what the laws of the road are basically. [¶] I
mean this is a woman who was taught to drive in a parking lot . . . . She never took any sort of test to obtain a
driver's license, and that's relevant.
The fact that she never was examined on the basic rules of the
road." Without citation, he also
claimed that her possession of a Mexican driver's license pointed to her moral
turpitude.
The trial court excluded the
challenged evidence: "I'm
definitely excluding how she learned to drive . . . her immigration status, and
the identification documents. I don't
believe they are particularly probative.
I think that they're extremely prejudicial. I think that, frankly, there is prejudice
which exists to [someone] who is here illegally. I think that there is prejudice in our
community against somebody who is driving a vehicle, from Mexico, who is not
licensed here."
Sedej claims on appeal that at trial
he did not seek to introduce evidence regarding Patricia's immigration status
"solely for the purpose of showing that Patricia was in the country
illegally . . . [but] in conjunction with evidence that [she] possessed a fake
Mexican driver's license and used a fake social security number to obtain
employment for the purpose of impeaching [her] credibility."
Sedej further claims that
"information related to how Patricia learned to drive and her lack of a
valid license were [sic] relevant to
[her] knowledge or lack of knowledge of the rules of the road. That knowledge was particularly relevant
because [she] was from Mexico and, as explained by defense counsel, the rules
of the road pertaining to stopping at red lights in Mexico differed from rules
governing red lights in California.
Mexican law contains a provision that permits a driver to proceed
through a red light between the hours of 11:00 p.m. and 5:00 a.m. once the
driver checks for oncoming traffic and determines it is safe to
proceed." Accordingly, he
claims: "The trial court erred by
excluding this relevant evidence tending to show that Patricia was the likely
cause of the collision."
Here, the trial court found the
danger of undue prejudice to the prosecution in introducing evidence of Patricia's
status as an undocumented immigrant substantially outweighed the probative
value. We conclude the court did not
abuse its discretion. It remains true
that the issue of illegal immigration into the United States is the subject of
intense debate and the topic provokes strong passions on all sides of the
issue. Neither party has provided this
court with any published case law establishing that illegal immigration is a
crime of moral turpitude. Our own
research has not found any case law on this question. Assuming arguendo that illegal immigration is
a crime of moral turpitude, we conclude that on these facts the trial court did
not err in precluding Sedej from questioning Patricia on her immigration
status.
Regarding the matter of how
Patricia learned to drive, such evidence would have required an undue
consumption of time to establish what Mexican law permits regarding stopping or
moving at red lights at certain times, and Patricia's knowledge of those
laws. Moreover, it is unclear that, even
if she had such knowledge, she acted on it in violation of California laws to
cause the collision. Sedej, not
Patricia, ran the red light. In light of
the undue consumption of time it would have required to lay a foundation on
these relevant questions, we conclude the trial court did not abuse its
discretion in excluding evidence regarding how Patricia learned to drive.
C.
Mexican Driver's License
Sedej's counsel argued during in
limine proceedings that Patricia had testified in a prior proceeding that she
sent money to her brother, who obtained her driver's license from Mexico. She also presented that document to the
police following the collision.
The trial court tentatively ruled
it would exclude testimony regarding Patricia's driver's license: "I'm looking at [Strandt v. Cannon (1938) 29 Cal.App.2d 509], and it is a case that
talks about negligence, and there is no such thing as contributory negligence
in this charge . . . . Because if it's
only being admitted to show contributory negligence, then it's not
relevant. If it is being admitted to
show that [Patricia] didn't know to stop
at the stop sign—because again I still think the pivotal issue is: Stop sign.
If she doesn't know to make a full stop at a red light, I'm not sure it
does that. So I think the odds are that
I may exclude the license status completely." That became the court's final ruling.
In excluding evidence regarding
Patricia's Mexican driver's license, the trial court was following established
law in California, as well as other states.
(See Annot., Lack of Proper Automobile Registration or Operator's
License as Evidence of Operator's Negligence (1953) 29 A.L.R.2d 963, 970-976,
and cases cited.) Thus, in
"[t]he nonpossession of an operator's or chauffeur's license is not of
itself proof that a person is an incompetent or a careless driver." Likewise in Strandt v. Cannon, supra,
29 Cal.App.2d 509, 518, the court held that a driver's negligence is to be
determined by the facts of the accident, and that whether the driver had a
license is immaterial unless there is some causal relationship between the
injuries and the failure to have a license.
We conclude Patricia's lack of a
valid driver's license is not relevant to the issue of the gross negligence of
the driver who caused the collision, unless the absence of the license
contributed directly to the injury. In
this case, there was no evidence showing that the absence of a license had
anything to do with the collision; therefore, such evidence was inadmissible
for the purpose of proving negligence, or for any other purpose.
D.
False Social Security Number
During an Evidence Code section 402
hearing, Patricia admitted providing a false social security number to a work
supervisor to obtain employment in the United States. The court required defense counsel to
sanitize that information by asking Patricia this precise question at trial,
"In May of 2007, did you knowingly provide false information on a W-4
form?" Patricia responded,
"yes."
Sedej claims, "As sanitized,
the question clearly lost any impact as that false information could have been
as insignificant as changing her birth date by one day. Information that Patricia provided a false
social security number on the W-4 form would have had a much greater impact on
the jury's view of her veracity."
Even though a defendant is entitled
to an opportunity for effective cross-examination, he is not entitled to "
'cross-examination that is effective in whatever way, and to whatever extent,'
" he might wish. (
673, 679.) The prospect of introducing
evidence of a witness's prior acts of misconduct raises serious problems of
proof, unfair surprise, fairness, and efficiency, as well as complicated
determinations of when moral turpitude is involved. (People
v. Wheeler (1992) 4 Cal.4th 284, 297, fn. 7.) Accordingly, courts are admonished to "consider
with particular care whether the admission of such evidence might involve undue
time, confusion, or prejudice which outweighs its probative value." (Id.
at pp. 296-297, fn. omitted.)
For the purpose of impeaching
Patricia's credibility, the sanitized question that the court permitted Sedej
to ask struck the proper balance between allowing substantial impeachment on
the issue of Patricia's honesty, on the one hand, and on the other, avoiding
prejudice to her by raising the issue of her social security number, which is a
sensitive topic with jurors, and would not be probative on the underlying issue
of the cause of the collision. We
conclude that the trial court did not err in limiting the evidence.
IV.
Sedej contends his conviction on
count 1 must be reversed because the trial court failed to instruct the jury
they must unanimously agree on which of the acts he committed satisfied the
second prong of Penal Code section 191.5, subdivision (a).
As noted, Penal Code section 191.5,
subdivision (a) provides that the crime of gross vehicular manslaughter while
intoxicated is committed when the defendant commits these two prongs: (1) drives a vehicle in violation of Vehicle
Code sections 23140, 23152, or 23153, and (2) engages in gross negligence while
committing an unlawful act not amounting to a felony, or a lawful act that
might produce death. Regarding the first
prong of the Penal Code section 191.5 offense, the prosecution's theory was
that Sedej violated Vehicle Code section 23152, which makes it unlawful for a
person to drive (1) while under the influence of alcohol (Veh. Code, § 23152,
subd. (a)), or (2) with a blood alcohol level of at least 0.08 percent (Veh.
Code, § 23152, subd. (b)). Regarding the
second prong of the Penal Code section 191.5 offense, the prosecution's theory
was that Sedej committed one or more of the following unlawful acts with gross
negligence: failing to stop at a red light (Veh. Code, § 21453); and driving at
a speed greater than reasonable or prudent under the conditions (Veh. Code, §
22350). The People also alleged he drove
without reasonable care and caution.
This theory was reflected in instructions to the jury with CALCRIM Nos.
590 and 595.
A jury verdict must be unanimous in
a criminal case. (See Cal. Const., art. I, § 16;
1132 (Russo).) Additionally, the jurors must agree
unanimously the defendant has committed one specific crime. (Russo,
at p. 1132.) Therefore, "[a]s a
general rule, when violation of a criminal statute is charged and the evidence
establishes several acts, any one of which could constitute the crime charged,
either the state must select the particular act upon which it relied for the
allegation of the information, or the jury must be instructed that it must
agree unanimously upon which act to base a verdict of guilty." (People
v. Jennings (2010) 50 Cal.4th 616, 679.)
The unanimity requirement " 'is intended to eliminate the danger
that the defendant will be convicted even though there is no single offense
which all the jurors agree the defendant committed.' " (Russo,
at p. 1132.)
As
explained in Russo, "The key to
deciding whether to give the unanimity instruction lies in considering its
purpose. The jury must agree on a
'particular crime' [citation]; it would be unacceptable if some jurors believed
the defendant guilty of one crime and other jurors believed [the defendant]
guilty of another. But unanimity as to
exactly how the crime was committed is not required. Thus, the unanimity instruction is
appropriate 'when conviction on a single count could be based on two or more
discrete criminal events,' but not 'where multiple theories or acts may form
the basis of a guilty verdict on one discrete criminal event.' [Citation.]
In deciding whether to give the instruction, the trial court must ask
whether (1) there is a risk the jury may divide on two discrete crimes and not
agree on any particular crime, or (2) the evidence merely presents the
possibility the jury may divide, or be uncertain, as to the exact way the
defendant is guilty of a single discrete crime.
In the first situation, but not the second, it should give the unanimity
instruction." (Russo, supra, 25 Cal.4th
at p. 1135.)
Closer to
the facts of this case, in People v.
Mitchell (1986) 188 Cal.App.3d 216, this court concluded the jury did not
need to unanimously agree whether the defendant committed the offense of
driving under the influence by driving at an unsafe speed or by engaging in a
speed contest. We reasoned that the
charges of violating the basic speed law and engaging in a speed contest were
merely alternative theories to prove a necessary element of the single act of
drunk driving. (Id. at pp. 221-222; accord, People
v. Leffel (1988) 203 Cal.App.3d 575, 586-587 [jury need not unanimously
agree whether defendant committed vehicular manslaughter by exceeding maximum
speed limit, driving faster than posted limit or than safe, driving recklessly,
or failing to drive on right half of roadway].)
Here, the unanimity instruction was
not required because the evidence reflected a single criminal event of driving
while intoxicated, and the jury needed only to unanimously agree that Sedej
committed that offense. The jury did not
have to agree unanimously on which theory supported a finding of guilt on the
second prong. (People v. Mitchell, supra,
188 Cal.App.3d at pp. 220-222; People v.
Leffel, supra, 203 Cal.App.3d at
pp. 586-587.)
V.
Sedej contends the prosecutor
denigrated the integrity of defense counsel and experts in several instances of
misconduct during closing arguments, thus violating his rights to due process
and an impartial jury under the federal and state Constitutions.
A.
During closing argument, the
prosecutor referred to a dispute about the date that defense expert Haight had
prepared a report. Defense counsel
objected on grounds the prosecutor had misstated the testimony. The court admonished the jury, "[Y]ou're
going to have to use the evidence as you recall it."
In another instance of alleged
misconduct, the prosecutor told the jury that one of the defense expert's
reports contained discrepancies; however, when questioned about it at trial,
the expert had said, "[T]his isn't eighth grade. I don't have to show my
work." The prosecutor commented
about that statement, "Yeah, you're right.
This isn't eighth grade math.
This is a court of law. And if
you guys want to accept it without his work, that's up to you. But there's another person who didn't have to
show his work, and that's Bernie Madoff."
Defense counsel objected on the basis of "improper
argument." The trial court
sustained the objection, telling the jury to "disregard the last
comment."
Another challenged comment by the
prosecutor came when he was showing the jury two photographs and this exchange
occurred:
"[Prosecutor]: . . .
"This is the world famous [Sydney Opera House] in Australia. It's supposed to be a really nice place. Never been there. This is what it looks like on a normal
day. About three weeks before this trial
started that's what the [Sydney Opera House] looked like because of dust storms
in [Sydney]. You can still see that it's
the [Opera House], but it's obscured by dust.
That's what the defense is doing in this case, ladies and gentlemen.
"[Defense
counsel]: Objection, your Honor. Improper argument.
"The
Court: Overruled. Go ahead.
"[Prosecutor]: That's what the defense is doing in this
case. They can't accept the eyewitness
testimony. . . . So bring in experts, bring in experts, bring
in experts to obscure what went on."
"[Defense
counsel]: Improper argument, your
Honor."
During a
side bar, the court ruled the prosecutor's argument was "not inappropriate
to say it creates a red herring. . . . I
think so far it's okay. [¶] I do agree that there are times when it can
go over the line. I don't think we're
there yet."
Another challenged statement was
the prosecutor's joke about a company that was hiring an accountant. In the joke, the first applicant was asked,
"What is two plus two?" and answered "Five." The second applicant answered the same
question with "Four." The
third applicant replied, "What would you like it to be?" That applicant was told, "You're
hired." The prosecutor added,
"And the reason I tell you that joke is because it applies to accounting
as well as it does to reconstruction."
Defense counsel did not object.
The prosecutor proceeded to discuss the different experts'
reconstruction of the collision scene.
B.
Generally,
a defendant cannot raise a prosecutorial misconduct claim on appeal unless he
first makes an assignment of misconduct at trial, stating the grounds, and on
that basis, requests the jury be admonished to disregard the impropriety. (People
v. Samayoa (1997) 15 Cal.4th 795, 841 (Samayoa).)
" '
" '[A] prosecutor is given wide latitude during 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.' " ' " (People
v. Hill (1998) 17 Cal.4th 800, 819 (Hill).) " '[C]ounsel may not [however,] assume
or state facts not in evidence [citation] or mischaracterize the
evidence.' [Citation.] 'Whether the inferences the prosecutor draws
are reasonable is for the jury to decide.' " (People
v. Harrison (2005) 35 Cal.4th 208, 249.)
"The prosecutor is permitted to urge, in colorful terms, that
defense witnesses are not entitled to credence, to comment on failure to
produce logical evidence, [and] to argue on the basis of inference from the
evidence that a defense is fabricated . . . ." (People
v. Pinholster (1992) 1 Cal.4th 865, 948.)
A
prosecutor's intemperate behavior violates the federal Constitution when it
comprises a pattern of conduct so egregious that it infects the entire trial
with such unfairness as to make the conviction a denial of due process. (Samayoa,
reversed for prosecutorial misconduct, however, unless it is reasonably probable
that a result more favorable to the defendant would have been reached without
the misconduct." (
839.)
Absent misconduct implicating federal
reverse unless it is reasonably probable the result would have been more
favorable to the defendant without the misconduct. (See People v. Cook (2006) 39 Cal.4th
566, 606, 608.)
C.
We reject
the claims of prosecutorial misconduct in this case. Regarding the prosecutor's argument about
Haight's report, Sedej did not object on grounds of prosecutorial misconduct,
and did not seek an admonition. Rather,
the defense objected the prosecutor had misstated the expert's testimony. Sedej has not shown on appeal why the court's
instruction to the jury to rely on its recall of the facts was insufficient to
cure any prejudice. We conclude the
claim is forfeited.
Similarly, the defense forfeited
any challenge to the prosecutor's joke about defense experts who adjust their
testimony to the needs of their client.
The defense failed to object at trial.
In any event, that joke was not so extreme that an admonition would not have
cured any harm. (People v. Gionis (1995) 9 Cal.4th 1196, 1216-1217.)
Regarding the prosecutor's
reference to Bernie Madoff, the trial court sustained the defense's objection
the argument was improper, and admonished the jury to disregard the
comment. We conclude this admonition
sufficed to cure any jury misconception caused by the prosecutor's statement.
As a
substantive matter, the prosecutor's reference to the two photographs of the
Sydney Opera House, one clear and the other obscured by dust—aiming to
illustrate that defense was obscuring the truth—was no different than argument
found proper by the California Supreme Court as summarized in
926, 1002-1003. In that case, the court
stated, "The prosecutor's remarks . . . would be understood by the jury as
an admonition not to be misled by the defense interpretation of the evidence,
rather than as a personal attack on defense counsel." (Id.
at p. 1003.)
We conclude
the prosecutor's challenged arguments did not so infect the trial with
unfairness as to constitute a denial of due process. Further, it is not reasonably probable Sedej
would have received a more favorable outcome absent those statements. This case turned on Sedej's level of
intoxication and whether he ran a red light in violation of traffic laws. There was overwhelming evidence on those two
points; therefore, any error by the prosecutor was harmless under any standard.
VI.
Sedej
contends the trial court erred in denying his request for probation based on
its finding he lacked remorse. Sedej
concedes that under California Rules of Court, rule 4.414(b)(7), the issue of
his remorse was a valid factor the court considered in evaluating his probation
request. However, he contends the court
abused its discretion and acted arbitrarily in finding he had failed to
acknowledge running a red light. Sedej
argues, "The record on appeal supports a conclusion that all [he]
remembered from the collision was suddenly seeing a vehicle that appeared to be
stopped in front on [sic] him before
the air bags in his vehicle [sic]." Therefore, "it was unreasonable for the
trial court to expect [him] to confess to running a red light to show he was
truly remorseful."
The sentencing hearing in this
matter took place over the course of two days.
The trial court noted it had read and considered the defense's statement
in mitigation and numerous letters submitted on Sedej's behalf. It also listened to recordings of Sedej's
jail conversations. The court summarized
for Sedej the basis for its belief he was not sufficiently remorseful: "But you made statements like [']I did
everything right for 23 years, and this is wrong.['] Implying it was wrong what happened to
you. You said [']I was trying to get out
of this.['] These are all statements I
had you respond to earlier . . . You said, [']it's not right. I don't get some things.['] And this was all after the conviction. After you've had a little time in
custody." The court added, "So
I have a John Sedej who is remorseful but not because he ran the red light but
because of his actions of drinking and driving and that somebody died. . . .
I do not believe that you believe that you have caused the crash. I do think you still feel like you have been
wronged."
The court denied probation,
although it found Sedej was eligible for probation, based on his lack of a
prior criminal record, ruling, "Someone died. That's part of the offense. Two other people were seriously injured. Your blood alcohol level was [at 0.19
percent], and you have no explanation for how you got there." The court noted the vulnerability all drivers
on the road face from a drunk driver.
The court pointed out "[t]he degree of monetary loss to the
victim's family is significant."
The sentencing court has broad
discretion in determining whether a defendant is suitable for probation. (People
v. Welch (1993) 5 Cal.4th 228, 233.)
" 'All defendants are eligible for probation, in the discretion of
the sentencing court [citation], unless a statute provides otherwise.' [Citation.]
'The grant or denial of probation is within the trial court's discretion
and the defendant bears a heavy burden when attempting to show an abuse of that
discretion. [Citation.]' [Citation.]
'In reviewing [a trial court's determination whether to grant or deny
probation,] it is not our function to substitute our judgment for that of the
trial court. Our function is to
determine whether the trial court's order granting [or denying] probation is
arbitrary or capricious or exceeds the bounds of reason considering all the
facts and circumstances.' [Citation.] [¶]
'The decision to grant or deny probation requires consideration of all
the facts and circumstances of the case.' " (People
v. Weaver (2007) 149 Cal.App.4th 1301, 1311-1312.) "[O]ne factor in aggravation is
sufficient to justify a sentencing choice." (People
v. Robinson (1992) 11 Cal.App.4th 609, 615, disapproved of on another
ground in People v. Scott (1994) 9
Cal.4th 331, 353.)
California Rules of Court, rule
4.414 provides criteria for the court to consider in deciding whether to grant
or deny probation. It describes a number
of factors, related both to the underlying crime and to the defendant. These factors "must be considered by the
sentencing judge[.]" (Cal. Rules of
Court, rule 4.409.) Among the factors
related to the crime that the court considers are "the nature,
seriousness, and circumstances of the crime as compared to other instances of
the same crime," (Cal. Rules of Court, rule 4.414(a)(1)) and
"[w]hether the defendant was an active or a passive participant." (Cal. Rules of Court, rule 4.414(a)(6).)
Here, the same judge presided over
the trial and sentencing. She read the
probation officer's report recommending denying probation and sentencing Sedej
to prison. The record is clear that the
court's conclusion that Sedej was not sufficiently remorseful was based on
Sedej's own statements in jailhouse recordings and at the sentencing
hearing. Further, the lack of remorse
was but one factor the court considered in denying probation. Although there were certainly factors
favorable to Sedej that the court could have used to support a decision
granting probation, there were other factors that supported its determination
to deny probation, as noted in its thorough analysis of the applicable
factors. We conclude the court did not
abuse its discretion in denying Sedej's request for probation.
DISPOSITION
We reverse the true findings on the Penal Code section
12022.7, subdivision (a) enhancements as to Nancy Ramirez in counts 2 and
3. In all other respects the judgment is
affirmed.
O'ROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
NARES, J.
name="_ftn1" title="">[1] Nancy, Patricia, and Maria Elena share a common last name;
therefore, we refer to them by their first names to avoid confusion.
name="_ftn2" title="">[2] In June 2010, Sedej filed a notice of appeal (D057783) of the
trial court's restitution order in the same underlying case. That appeal was consolidated with the present
appeal by order in August 2010, but Sedej does not challenge the restitution
order in his appellate briefs.
