P. v. Seymore
Filed 4/12/13 P. v. Seymore CA1/2
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opinion has not been certified for publication or ordered published for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
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
WILLIAM RAY
SEYMORE,
Defendant and Appellant.
A129678
(Humboldt County
Super. Ct. No. CR1001212)
A jury found defendant
William Ray Seymore guilty as charged of possessing
a sawed-off shotgun (Pen. Code, former § 12020, subd. (a)(1)),
following which defendant admitted an allegation that he had a prior felony
conviction (Pen. Code, § 667.5, subd. (b)). The trial court sentenced him to
years. On this timely appeal, defendant
presents claims of trial court error in: (1) allowing the admission of
impermissible evidence; (2) permitting prosecutorial misconduct; (3) and instructing
the jury improperly. Defendant also
contends that he did not receive the constitutionally-guaranteed benefit of the
assistance of effective counsel. We
conclude that no prejudicial error occurred during defendant’s trial, and
therefore affirm the judgment of his conviction.
The relationship between
defendant and Holly Upshaw had once been cordial. It started when they were introduced by
Upshaw’s fiancé when he, the fiancé, was in prison. According to Upshaw, defendant “became my
caretaker while my fiancé was in prison.†“We pretty much did everything
together.†They lived together in their
cars, which they often parked at the Blue Heron motel. But eventually their relationship began to
fray. “We started bickering like a
married couple because we were around each other all the time.†On the evening of February 24, 2010, Upshaw
and defendant quarreled before she left the Blue Heron to get gas for her
car. Defendant followed in his pickup
truck.
That evening, Marion Thom,
the manager of a Texaco station in Eureka, observed a man and a woman arguing
in a nearby parking lot. The man got
into a pickup, backed into a car being driven by the woman, and then drove
away. Thom had already called 911 when
the woman, Upshaw, came into the station office. Thom gave the telephone to Upshaw, who told
the operator that it was defendant who had struck her car. Upshaw reported that she and defendant had
been fighting, that defendant had demanded money from her, and that he was
headed to the Blue Heron motel in his pickup, which Upshaw described. When the operator asked whether defendant was
armed, Upshaw replied that defendant kept a sawed-off shotgun under the seat of
his pickup, and that she had seen it there the day before. The tape of the 911 call was played for the
jury.
After Upshaw finished
speaking with the 911 operator, Thom showed her a security camera
videotape. Upshaw testified that the
tape accurately depicted the events in the parking lot. The videotape was also played for the jury.
Eureka Police Officer John
Goodale talked with Upshaw at the gas station.
He watched the hard drive recording of the security system from which
the videotape was made. Upshaw described
defendant’s pickup (“a big, blue Chevy truck with Oregon license platesâ€),
named defendant, and told Goodale that he would be at the Blue Heron
motel. Goodale drove to the motel, and
saw the pickup. Inside it he observed a
shotgun, which he retrieved. The vehicle
was unlocked, and the weapon could be plainly seen from outside. Goodale unloaded the weapon and put it in his
vehicle. Defendant was found in one of
the motel’s rooms and arrested for possessing the shotgun.
Defendant did not
testify. His defense, presented by the
testimony of a friend, Louis Prado, was that a man who used to live next to
Prado planted the shotgun in defendant’s pickup.
Additional evidence will be
discussed in connection with our resolution of defendant’s claims of error.
Trial Court Did Not Abuse Its Discretion
Admitting The 911 Tape And The
Testimony
Defendant moved in limine to
exclude evidence of the 911 call initiated by gas station operator Thom and
then continued by Upshaw. In his written
motion, defendant argued that exclusion was appropriate because the statements
made by Upshaw were more prejudicial than probative, did not qualify as an
excited utterance (Evid. Code, § 1240), and could not satisfy the
in Crawford v. Washington (2004) 541
U. S. 36. Defendant’s motion aimed at
excluding not only the tape itself, but also testimony from the 911
dispatcher. The relevant portions of the
tape are set out as an appendix to this opinion.
The trial court conducted an
evidentiary hearing pursuant to
Evidence Code section 402 at which it heard testimony from Marion Thom, Upshaw,
and Michelle Reyna-Sanchez, the 911 dispatcher.
Ms. Reyna-Sanchez and Ms. Thom did nothing more than authenticate the
911 tape. So did Upshaw, although she
also testified that she was crying and “emotionally traumatized†while making
the call. Upshaw also authenticated the
station’s security camera videotape.
At the conclusion of the
hearing, the trial court ruled that the evidence would be admissible. Defendant attacks this ruling on several
grounds. Before addressing those
attacks, two preliminary remarks are in order.
First, although
in defendant’s moving papers and in the trial court’s ruling, it is neither
cited nor discussed in defendant’s briefs.
No further mention of Crawford’s
Confrontation Clause analysis is required.
Second, the record before us
does not include the actual 911 tape.
Without it, we cannot undertake an informed review of whether the trial
court erred in concluding Upshaw’s statements were made in “the stress of
excitement†(Evid. Code, § 1240, subd. (b)) that would authorize
admission.
Defendant argues that
evidence of the 911 conversation lacked relevance. This was not one of the grounds mentioned in
defendant’s moving papers, but it can be seen as included in defendant’s
arguments at the hearing. Defendant’s
relevance argument will therefore be deemed preserved for purpose of review.
Defendant argued at the
hearing that “the 911 call lacks relevance as to whether Mr. Seymore was in
fact in possession of a short-barreled shotgun.†The court concluded that “the 911 tape is
relevant to the element of the crime of possession and knowledge of the
sawed-off shotgun.†That ruling can be
overturned on appeal only if we conclude the trial court abused its discretion
in determining that the evidence was relevant.
(People v.
955.) We cannot so conclude.
At a minimum, the evidence
was relevant, as the prosecutor stated, because “it puts Mr. Seymore in the
blue truck,†which is where the illegal weapon was located. Thus, the evidence was relevant in showing why
Officer Goodale went to the Blue Heron motel and examined the particular truck
that he did. It was because of what
Upshaw told him that Goodale was on the look-out for a particular type of
concealable weapon. The 911 tape was
also relevant because Upshaw’s statements to Ms. Reyna Sanchez corroborated
what was on the security videotape.
The major part of
defendant’s argument for exclusion tacitly conceded relevance, while trying to
demonstrate that it was outweighed by the prejudicial impact of the jury
hearing the tape and therefore exclusion was appropriate under Evidence Code
section 352. The trial court’s
rejection of this argument is also reviewed for abuse of discretion. (People
v. Jablonski,
But defendant insists that
the normal review cannot be had because the record does not establish that the
court actually undertook the weighing process required by Evidence Code section
352. It is true that the trial court did
not expressly recite that it was conducting the weighing process, but that is
not fatal. “ ‘[A] court need not
expressly weigh prejudice against probative value or even expressly state that
it has done so, if the record as a whole shows the court was aware of and performed
its balancing functions under Evidence Code section 352.’ †(People
v. Hinton (2006) 37 Cal.4th 839, 892.)
We believe that recognition was present here.
As defendant put it in his
moving papers: “The 911 tape is
interrupted by a second call reporting a reckless driver. This segment of the call reports that a blue
car with white fenders is . . . violating the Vehicle Code in a
dangerous way. This portion of the call
. . . could imply that it is the Defendant who is driving
recklessly.†Defendant termed it
“misleading†and potentially confusing to the jury. After inviting the prosecutor “to address the
. . . 352 objection,†the court agreed with defendant and directed
that “the part talking about the blue car will be excluded.†It seems highly unlikely that having
mentioned Evidence Code section 352 the court would neglect to perform
the analysis demanded by that statute.
Moreover, the court appeared to be sensitive to defendant’s concern when
it suggested that “the Court would be open†to a limiting instruction. We conclude that these circumstances are
sufficient to establish that the trial court complied with the process of
weighing relevance and prejudice required by Evidence Code section 352.
Defendant sees prejudice in
Upshaw’s statements on the tape that defendant:
(1) “backed up and slammed into her carâ€; (2) “keeps coming
after me†even though “Everybody knows I am pregnantâ€; (3) would get “even more
mad†if she “get him caught up in thatâ€; and (4) “will kill me†if he
discovered “that I told you.â€
Defendant’s analysis in his
brief is larded with references to Evidence Code section 1101, a statute not
mentioned in his moving papers or his argument at the hearing. By reason of that omission, the statute
cannot be used for the first time on appeal.
(People v. Kennedy (2005) 36
Cal.4th 595, 612; People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13.)
We cannot conclude that the
trial court abused the discretion granted it by Evidence Code section 352. Without the tape, and the corroborating
testimony of Thom, Upshaw, and Officer Goodale, the jury would have had no
explanation as to why Officer Goodale went to the Blue Heron looking for
defendant or the association between defendant and the pickup in which the
shotgun was found. Jurors are not
stupid. They would not accept that
Officer Goodale simply showed up at a specific motel, looking for a specific
person, who was driving a specific vehicle, and in possession of a specific
type of weapon. The trail had to be
shown, the dots connected. The 911 tape
did that. As for the supposedly
prejudicial aspects identified by defendant, the fact that defendant hit
Upshaw’s car, and her various expressions of why she was afraid of him, would
logically explain why she called 911.
The matter of the tape’s
admissibility is the basis for two claims by defendant that he was denied his
constitutional right to the effective assistance of counsel. He first argues that his trial counsel’s
performance fell below acceptable norms because she did not “press†the trial
court to state for the record the court’s reasoning on the balancing process
required by Evidence Code section 352.
It has already been established that such an analysis need not be
recited for the record and, in any case, the court’s reasoning can be discerned
from this record. Having concluded that
the trial court’s analysis does not amount to an abuse of its discretion, the
claimed omission by counsel would not qualify as prejudicial.
Defendant next submits that
trial counsel incompetence is demonstrated by the limiting instruction she
fashioned that was given to the jury.
Defense counsel took up the trial court’s suggestion and did submit a
limiting instruction which read: “A
videotape and a 911 recording were admitted into evidence. These items should only be considered in
deliberations regarding: one, possession and control of the vehicle depicted
and referenced as the case may be; and two, possession and control of the
firearm located in said vehicle.â€
Defendant now argues that this instruction demonstrates trial counsel’s
incompetence in that it was “inadequate because it does not address the issue
of other bad acts or uncharged crimes or the trial testimony regarding the
[Bridgeville] incident, and it fails to affirmatively instruct the jury that it
cannot consider the other bad acts or uncharged crimes for propensity to commit
the charged crime.†We disagree
entirely.
The instruction plainly
advised the jury that the tapes could be used for two purposes and two purposes
only. Implicit in the instruction is
that the evidence could not be used for “propensity†as defendant now
fears. This was certainly how defense
counsel interpreted the instruction when she argued that the jury should “remember
the judge has instructed you you’re not to decide whether some disturbing of
the peace or vandalism or something like that took place at the Texaco
[station].â€
As will be shown in the next
section of this opinion, the jury did not learn of any “bad acts or uncharged
crimes†concerning the Bridgeville incident.
As for whatever “bad acts or uncharged crimes†might have arisen out of
the incident in the Texaco parking lot, reasonable competent counsel could have
made a rational tactical decision not to draw the jury’s attention to specific
possibilities the jury would then be told to ignore.
Relating To Possession Of The Shotgun On
Day Before The Charged Offense
Defendant was charged with possessing the prohibited
shotgun “on or about†February 24, 2010.
Yet it was also clear that defendant was in possession of the shotgun on
the day before the date specified in the information. This issue of possession on February 23
underlies a number of issues in defendant’s brief. We collect them here.
During her direct
examination by the prosecutor, Upshaw was asked when she came to be aware of
the shotgun. She responded: “When we used it the day before for
protection. [¶] . . . [¶] I
was in the truck with him [defendant].
We were headed past Bridgeville to go retrieve as stolen truck of his. [¶] . . . [¶] I
didn’t see it until it was brought out, and then it was in both of our
possession.†It was on February 23,
2010, the day before the events at the Texaco station and the Blue Heron motel,
that Upshaw fashioned the stock for the shotgun in Bridgeville.
Further direct examination
elicited answers that that on the 23rd defendant was going to Bridgeville “to
find a vehicle that was stolen,†and defendant did not “attempt to use the
sawed-off shotgun.†When the prosecutor
asked whether defendant “express[ed] any intention as to what the shotgun was
going to be used for,†defense counsel objected on the grounds of relevance and
“352 also.†At that point the jury was
excused, so that defense counsel could “state . . . an expanded
objection.†Defense counsel then
objected that the prosecutor’s question “would call for Miss Upshaw’s testimony
as to any attempted crime of violence or use . . . of that shotgun at
the incident in central Humboldt [County]. . . . I think it’s extremely prejudicial to the
defendant that the jury hear that he may have used that shotgun, especially, in
light of the fact that Miss Upshaw has been given an immunity agreement and is
admitting to aiding and abetting a violent crime. So that was my 352 objection. [¶] I would also object on relevance to
the case-in-chief as of February 24, 2010, of whether Mr. Seymore was in
possession of a short-barreled shotgun.â€
The prosecutor responded
that defense counsel “was incorrect at bench.
She received discovery on May 13 [i.e., yesterday]. At least that’s the time stamp we have in
Investigator Honsal’s report. She
[Upshaw is] not testifying to any of that, in any respect; that she’s aiding
and abetting a violent crime. . . . [¶] She did tell
Investigator Honsal that they went to—Mr. Seymore confronted the man who stole
his vehicle. Seymore beat him up
bad. I didn’t anticipate putting that in
front of the jury. And he [defendant]
wanted to threaten him with the shotgun, but she [Upshaw] wouldn’t allow him
access to the shotgun. I don’t see how
she’s aiding and abetting any sort of violent crime, other than the defendant’s
violent crime which she was obviously not a party to.†The prosecutor then suggested that “Upshaw
would obviously need to be instructed that she cannot testify about uncharged
bad acts.â€
The court ruled that Upshaw
would be allowed to testify that she stopped defendant from using the shotgun,
but without getting into “additional uncharged bad acts or crimes.†Upshaw was instructed by the court as to what
she could testify about and what she could not.
Defense counsel also stated: “I
guess problematically I will concede I did have discovery as to the
incident—that we’re talking about in this objection. Unfortunately, it’s extremely hard from that
discovery to determine what date that may have occurred. And, I’m sorry, Miss Upshaw may have already
testified as to what date she thought that was.
But I—I’m not clear. Clearly the
information is on February 24.†The
prosecutor confirmed that his questions “pertain[] to the day before.†The prosecutor further confirmed that further
questioning would not encompass “a violent encounter between Mr. Seymore and
another man.â€
In the presence of the jury,
Ms. Upshaw then testified as follows:
“Q. And at some point after you had fixed the
handle to the shotgun, did Mr. Seymore attempt to possess it in any
manner?
“A. He tried to get it, yes.
“Q. And, again, this was on the 23rd?
“A. Yes.
“Q. And can you describe how he intended to get
it?
“A. He reached to get it, and I kind of blocked
him from grabbing it.â€
Defendant’s first claim is
that he was not provided discovery of information concerning the Bridgeville
incident in a timely fashion, which amounted to prosecutor misconduct. But defendant’s trial counsel made no such
claim. As shown, she did concede “I did
have discovery,†and did not argue that its provision to her was untimely. No claim of misconduct was ever presented. The arguments defendant now make were
therefore not preserved for review. (
168, 215; People v. Kennedy,
would not prevail.
The statute governing
criminal disclosure mandates that it shall be provided “at least 30 days prior
to trial . . . . If the
material and information becomes known to, or comes into possession of, a party
within 30 days of trial, disclosure shall be made immediately
. . . .†(Pen. Code,
§ 1054.7.) Given that discovery had
been made to the defense only the day before without protest by defense counsel
that it was untimely, we must presume that the prosecution complied with the
statute and made disclosure “immediately†after it became known to the
prosecution. (Evid. Code,
§ 664.) Defense counsel’s failure
to request any sanctions is also significant circumstantial proof that the
defense was not sandbagged.
Moreover, had a violation of
the prosecution’s discovery obligations been established, defendant could not
establish prejudice. Defendant argues
that “The Bridgeville incident was the only evidence that tended to show that
appellant was in knowing possession of a short-barreled shotgun at any point in
time. Therefore, it was a dominant part
of the evidence against him. Admission
of the evidence was prejudicial because defense counsel could not be expected
to be able to respond to such inflammatory evidence, on such short notice,
during trial.†But Upshaw could—and
did—testify to defendant’s possession without getting into the details of what
happened once she and defendant arrived in Bridgeville and confronted the
suspected thief. It is therefore simply
erroneous to state that the “Bridgeville incident was the only evidenceâ€
showing that defendant “was in knowing possession of a short-barreled shotgun
at any point in time.†Whatever may have
been “inflammatory†about that incident was neutralized by the trial court’s
severe restriction of how it could be revealed to the jury.
Next, assuming that his
trial counsel did receive discovery in a timely manner, defendant contends that
trial counsel was constitutionally incompetent because she did not “investigate
it, recognize its significance, and immediately move . . . to exclude
it prior to the jury becoming aware of it.â€
Exclusion is pretty much what the trial court did, without any prompting
from counsel. The utterly bland fashion
in which Upshaw told the jury of how she prevented defendant from getting his
hands on the shotgun on February 23 appears equivalent to the same outcome
trial counsel could have achieved had she acted as defendant now
specifies. In other words, defendant has
failed to demonstrate prejudice from any omission by his trial counsel.
Finally, the issue of
possession of the shotgun on February 23 leads to a claim of instructional error
by omission. Defendant points to an
instance in which he claims the trial court failed to satisfy its sua sponte
duty to instruct the jury on principles of law openly connected with the case. (People
v. Koontz (2002) 27 Cal.4th 1041, 1085; People v.
Estrada (1995) 11 Cal.4th 568, 574.)
Because the trial produced
testimony that defendant had the shotgun on the day before the incident at the
Texaco station, he contends the court ought to have given the jury a unanimity
instruction.
The
state Constitution guarantees criminal defendants a unanimous jury verdict on a
specific charge. (Cal. Const., art. I, §
16.) When a conviction on a single
charge could be based on evidence of two or more discrete criminal acts, all
jurors must agree that the defendant committed the same act. (People v. Russo (2001) 25 Cal.4th
1124, 1132.) “When a defendant is charged with a single offense, but there is
proof of several acts, any one of which could support a conviction, either the
prosecution must select the specific act relied upon to prove the charge, or
the jury must be instructed that all the jurors must agree that the defendant
committed the same act or acts.
[Citation.] When the prosecutor
does not make the election, the trial court has a sua sponte duty to instruct
the jury on unanimity.†(People v.
Mayer (2003) 108 Cal.App.4th 403, 418.)
Here the
prosecution made that election. The
information identified defendant as having committed the offense “on or about
February 24, 2010.†The following
excerpts from the prosecutor’s closing argument establish beyond any question
that the prosecutor ignored Upshaw’s disclosure about defendant’s possible
possession on the day before, and elected the date used in the information:
“So I think there’s no dispute Mr.
Seymore was at the gas station, and
Mr. Seymore has the blue Chevy and that there was a shotgun in the
Chevy. [¶] . . . [¶]
“So we have Miss Upshaw at the
Texaco. And we have the argument which
precipitates the 911 call. 911 is
called, gets EPD Officer Goodale.
Officer Goodale, if you recall, said that he was—his response time from
the time of the 911 call to the time he went to the Blue Heron was
approximately 10 minutes. At that time
based on the description provided by Miss Upshaw and subsequently confirmed by
defense witness Mr. Prado, Goodale finds this blue Chevy truck. Fearing for officer safety, he goes to the
driver’s side window, looks in. In plain
view he sees the shotgun . . . . [¶] . . . [¶]
“[After the
incident at the Texaco station], Mr. Seymore gets in the truck. It’s his truck. You see on the video—he must have seen the
weapon, reached behind the front passenger seat, picked up the weapon,
. . . put it . . . under the driver’s side floorboard with
the handle facing front. If he did that,
which is the only explanation for where the . . shotgun was located—I
mean, that’s the only reasonable explanation . . .
[¶] . . . how a firearm would be able to make it from this area
to this area would be if the person who got in the truck, who was driving the
truck, moved it. [¶] . . . [¶]
“. . . I hope I made
my point regarding the general intent nature of the crime. We don’t need to intend to use the firearm
for a wrongful purpose. You just have to
possess it. . . . [¶] The 911 . . . call gets EPD
properly to the Blue Heron, find the truck, . . . Mr. Seymore’s
truck. That’s where the shotgun was
found. [¶] . . . [¶]
“. . . [L]et’s just
take the case since we’re here. On the
24th who had the shotgun? Mr. Seymore,
we allege, had this shotgun in his truck.
This was after Goodale talked to Upshaw to get his information, went to
the Blue Heron, found the truck matching the description given by Miss Upshaw,
subsequently identifying the vehicle and found the shotgun. That’s what we have. We have Mr. Seymore’s shotgun. Mr. Seymore’s vehicle at the Blue Heron. This is on the 24th.â€
There was nothing in the
prosecution’s argument to suggest that it was relying on Upshaw’s testimony
about the shotgun’s possession on the February 23. Because the prosecution made a clear election
to have the charge rise or fall on the evidence of defendant’s possession on
February 24, there was no sua sponte obligation on the trial court to give a
Cal.App.4th 403, 418; People v.
Hawkins (2002) 98 Cal.App.4th 1428, 1455.)
Defendant contends his trial counsel
was constitutionally incompetent because she did not “request the prosecution
to make an election as to a particular instance of possession.†In light of the preceding analysis, this claim
fails because defendant cannot establish prejudice from trial counsel’s
omission.
Defendant Has Not Identified Any Prejudicial
Misconduct By The Prosecutor
Defendant contends that the prosecutor’s “pervasive
pattern of misconduct†deprived him of his due process right to a fair trial.
The trial court closed his initial instructions to the
jury with “Now that you have heard all the evidence as well as my initial
instructions, we’ll now hear arguments of counsel. Again, I’ll repeat that
Mr. McLaughlin gets to . . . give an opening/closing and a final
closing.†The prosecutor commenced his
closing argument as follows: “Good
morning, ladies and gentlemen. I just
want to piggyback on what the judge says.
I’m going to use the phrase ‘I think’ a lot. What this is is my interpretation of what the
evidence is. It’s going to be up to you,
the trier of fact, who decide. So my
interpretations, as the Court said, . . . are not evidence, just my
opinion.â€
Defendant sees this and other remarks as improper
“vouching†for the prosecutor’s view of the evidence and defendant’s
guilt. We do not have the same view, for
the reasons stated in People v. Pineiro
(1982) 129 Cal.App.3d 915, 924: “It is
misconduct for a prosecutor to argue his personal opinion of a defendant’s
guilt or to intimate that he would not prosecute an innocent man. [Citation.]
The prosecutor did not do this in the present case: examination of his arguments to the jury
demonstrates that he was merely presenting his view of deductions and
inferences warranted by the evidence.
His use of the pronoun ‘I’ did not mean that he was impermissibly injecting
his personal beliefs.â€
Next, defendant attacks the prosecutor for alluding to
certain facts not in evidence. Defendant references three instances where the
prosecutor made remarks about how he had not anticipated that Upshaw was going
to claim that she “jointly possessed†the shotgun with defendant. Concerning Upshaw’s testimony about jointly
possessing the shotgun with defendant, the prosecutor was merely expressing his
lack of foreknowledge. This hardly
amounts to providing the jury with “information about his extra-record
communications†with her, and thus “stating facts not in evidence†as defendant
believes.
The prosecutor told the jury “I felt comfortable giving
her [Upshaw] immunity.†He immediately
followed that with “She testified it was jointly theirs for protection of
vehicles and their belongings. So she’s
guilty because in this crime all that’s required is the possession.†This hardly looks like vouching for her
credibility, as evidenced by the prosecutor’s earlier remarks: “Miss Upshaw was given an
those aren’t palatable to jurors.
They’re not palatable for prosecutors either. . . . As much as it stinks, quite frankly, it was
necessary.†None of the remarks elicited
an objection from the defense or a request that the jury be admonished. By reason of this omission, the point was not
preserved for review. (
1260; People v. Gray,
Officer Goodale testified on defense cross-examination
that when he encountered Upshaw at the Texaco station he thought she was under
the influence of a controlled substance.
The prosecutor argued that it was a “red herring†that Upshaw’s
credibility was somehow impaired because she was not arrested. Defendant attacks this as misconduct because
there was no evidence that Upshaw was herself arrested at the Texaco
station. But there was Upshaw’s emphatic
testimony that she was not under the influence.
From that, the absence of an arrest seems a fair inference for the
prosecutor to press upon the jury.
Moreover, there was no misconduct because the prosecutor was literally
correct—there was no evidence that Upshaw was arrested on February 24 for being
under the influence.
Defendant sees the same kind
of misconduct in the prosecutor’s argument about Upshaw being an informer: “But Miss Upshaw is now, having testified
against Mr. Seymore, a snitch. . . . She didn’t want to get her friend at the Blue
Heron who disclosed where Mr. Seymore was in trouble. She didn’t want to make her friends
snitches. She’s already a snitch.†The jury knew that Upshaw was testifying
against her will, pursuant to an immunity agreement, and that she had a pending
charge of possessing methamphetamine for sale.
The commonly-known ‘snitch†designation thus comes within fair
comment. But Upshaw did
Heron.†To that extent, the prosecutor
did go beyond the evidence or reasonable inference. However, there was no defense objection to
preserve the point for review. (
v. Gray, supra, 37 Cal.4th
168, 215.) “ ‘In the absence of a
timely objection the claim is reviewable only if an admonition would not have
otherwise cured the harm caused by the misconduct.’ †(People
v. Hinton, supra, 37 Cal.4th 839, 863.) Because the type of alleged misconduct here
would have been cured by an admonition, the forfeiture rule still applies.
The next instance of claimed
misconduct must take account of prior remarks by defense counsel who not so
subtly insinuated that the shotgun was Upshaw’s and that she arranged to have
it found in circumstances that would incriminate defendant: “What more likely happened is that
. . . the sawed-off shotgun was put into the truck only after Holly
Upshaw asked that it be. [¶] . . . [¶] It
is possible that this is Miss Upshaw’s sawed-off shotgun. And after she’s talked to Eureka Police, she
may realize while she’s on the phone—again, she doesn’t mention the weapon
until the very end of the 911 call. She
may realize that the police will descend on the Blue Heron very quickly and
that they may, in fact, find her gun. So
she has two motives to lie and two motives to lie both to the police and in
court to protect herself . . . and to get Mr. Seymore out of her
hair. [¶] . . . [¶] I
think it’s ended up very convenient for Holly Upshaw that she was given
immunity for her drug dealing and that she was then able to come up here and say—basically
admit her own possession of . . . the sawed-off shotgun and not get
prosecuted for that, get William Seymore prosecuted for that.â€
In response the prosecutor
argued that the defense argument “makes no sense because Miss Dixon’s theory is
that she’s calling to have . . . the police find the gun. So, if the gun wasn’t in the truck, it would
have been safer for Holly Upshaw to say she didn’t see a gun. The police wouldn’t have found it. They didn’t have a search warrant. They looked in the truck. Wasn’t there, it wasn’t there. Never come back to Holly.†The prosecutor also told the jury that “What
Miss Dixon told you is actually factually incorrect. She [Upshaw] has no immunity for testimony in
this case.â€
Defendant contends that the prosecutor’s remarks were
misconduct because “[t]here when no evidence that the police did not have a
search warrant. Nor was there any
evidence about what would have happened if the police did not locate the
shotgun in the truck. The prosecutor was
merely speculating that they would not have gone back to Holly and eventually
connected her to the shotgun.†With
respect to the shotgun, it is now defendant who is relying on the absence of
evidence. The prosecutor was proceeding
on the reasonable assumption that the police, connecting defendant only with
the truck that might be at the Blue Heron, would restrict their search to the
truck, there being otherwise no reason to connect defendant with one of the
rooms at the motel. Nor do we discern an
attack on defense counsel’s integrity when the prosecutor noted that defense
was “factually incorrect†about the scope of Upshaw’s immunity, particularly
when defendant acknowledges that defense counsel had “misstated the
facts.â€
Defendant sees misconduct in the prosecutor arguing the
state of Upshaw’s vehicle when she was subsequently arrested. But defendant concedes “the only person to
testify about these things was Holly,†without realizing that this means that
the prosecutor was not misstating the
evidence, and thus not committing misconduct.
The sole defense witness, Louis Prado, ended his direct
examination by responding “not that I’m aware of†when asked whether he had
been convicted of a felony. The
prosecutor made this issue the start of his cross-examination:
“Q. Mr. Prado,
what’s your date of birth, please?
“A. 7/24/58.
“Q. Thank
you. And are testifying you don’t have a
conviction for Health and Safety Code 11379 [possession for sale]?
“A. Well, if this
is about me, I don’t know exactly what my arrest record’s about. I haven’t been in any trouble in a good
while.
“Q. Okay.
“A. And as far as
remembering, I’m not sure about the dates and everything and what convictions I
have. I have had Safety—Health and
Safety convictions, yeah, sure, paraphernalia.
“Q.
Methamphetamine.
“A. Excuse me?
“Q.
Methamphetamine related?
“A. I’ve been
caught with some, yes.
“Q. Okay. Could that be the genesis of your conviction
for Health and Safety Code 11379, if you remember?
“A. Well, I know
that that’s one of the—I don’t know if it’s mine or what—I can’t be sure?
“Q. Okay. So your memory is a little fuzzy?
“A. What you’re
talking about? I told you I’ve had a
couple runs with meth, yeah. The dates
and what I’ve been convicted on, I don’t know.
We’re talking about me.â€
Defendant calls this misconduct because the prosecutor
was assuming a fact not in evidence—Prado’s felony conviction. But what is perfectly obvious is that Prado
did have a felony conviction and everybody knew it. If we had a reporter’s transcript of all the
pretrial proceedings, we are virtually certain we would find an in limine
motion asking the court to rule on whether Prado could be impeached with a
felony conviction. We are equally
certain that the court ruled that Prado could be so impeached. Defense counsel tried to draw the sting by
introducing the subject herself. But
Prado, either from nervousness, genuine memory loss or some other motive,
departed from the script and denied what both counsel and the court knew to be
the demonstrable reality. Only this
explains the silence of the court and defense counsel during the prosecutor’s
cross‑examination. If these
presumptions are incorrect, the claimed misconduct could have been cured by
admonition had defense counsel objected.
(People v. Hinton,
The prosecutor argued “We have Mr. Goodale—Officer
Goodale who actually viewed the image from the hard drive at the Texaco, not
just a video of a video that we were fortunate or unfortunate enough to
get. And he picks out Mr. Seymore’s
clothing as matching the clothing Mr. Seymore was wearing at the Blue Heron
when he was arrested.†Defendant calls
this misconduct because “[t]here was . . . no evidence that
Goodale saw any different version than the jury saw, and there was no evidence
that any other version was more clear in any event.†The security surveillance system records onto
a hard drive. Videotape copies can be
run off. One such copy was run off and
shown to the jury. Before it was shown,
the prosecutor told the jury that “the quality isn’t very good.†Officer Goodale watched the hard drive
version. Whether or not the videotape
shown to the jury was less clear than viewing the hard drive is not a matter
that can be resolved this court from this record. However, no one disagreed with the
prosecutor’s characterization of the videotape shown to the jury, and defense
counsel in her argument called the tape “really hard to view.†In the remarks now challenged, the prosecutor
was only implicitly reiterating the same characterization of the videotape’s
quality.
But most importantly, the essential point of the
prosecutor’s argument was that the clothing on defendant depicted in the
security camera system that Officer Goodale saw was the same clothing defendant
was wearing at the Blue Heron motel.
Defendant claims that because the videotape seen by the jury was “very
small and of poor quality,†making it “not possible to discern colors or
clothing styles in it. . . . , Goodale’s testimony that the
clothing matched would have been unconvincing in the absence of the
prosecutor’s improper conduct.†The
credibility of Officer Goodale’s testimony, and the weight to be given the
videotape, were matters solely within the competence of the jury. Arguments to a reviewing court about whether
a given witness’s testimony is “unconvincing†are therefore misdirected, and do
not establish misconduct.
The jury heard testimony from a Detective Wilcox that no
usable fingerprints were recovered from the shotgun. The prosecutor argued that “We don’t have any
usable fingerprints on the weapon, not from the mysterious man who placed the
object in the truck [according to Mr. Prado’s testimony], not from Miss Upshaw,
not from Mr. Seymore.†Defendant
contends that “while this statement is not inaccurate, it is misleading in that
it implies that the shotgun was analyzed for Holly’s and the other man’s
fingerprints. However, Detective Wilcox
testified that he had tried to match the latent print only with appellant’s
fingerprints.†If the prosecutor’s
argument was not factually inaccurate, any defects should have been shown by
counterargument.
The same conclusion largely applies to the remaining
instances of alleged misconduct. Apart
from undermining his position by accusing the prosecutor of “fail[ing] to
acknowledge that there was conflicting evidence,†the cited instances involve
minor matters of collateral significance, i.e., whether defendant and Upshaw
argued before she left the Blue Heron for the Texaco station, whether they
argued about methamphetamine.
Finally, as for misrepresenting Luis Prado’s testimony as
to when and where the shotgun was planted in defendant’s truck, the prosecutor
was simply arguing from Prado’s evidence that on the afternoon of February
24—which would obviously be before the incident at the Texaco—he saw an unnamed
man enter defendant’s truck and “mess with the seat,†and then leave, no longer
carrying the “something under his coat.â€
Reasonable inferences, fair comment—not misconduct. (People
v. Hill (1998) 17 Cal.4th 800, 819; People
v. Dennis (1998) 17 Cal.4th 468, 522.)
Prejudicial Error Occurred In The Failure To
The Jury On Accomplice Testimony
The other instance
identified by defendant as a failure by the trial court to fulfill its sua
sponte duty to instruct the jury on principles of law openly connected with the
case (People v. Koontz,
accomplice.
“A conviction cannot be had
upon the testimony of an accomplice unless it be corroborated by such other
evidence as shall tend to connect the defendant with the commission of the
offense; and the corroboration is not sufficient if it merely shows the commission
of the offense or the circumstances thereof.
An accomplice is hereby defined as one who is liable to prosecution for
the identical offense charged against the defendant on trial in the cause in
which the testimony of the accomplice is given.†(Pen. Code, § 1111.) Defendant contends that Upshaw met this
definition of accomplice, thus requiring the trial court to instruct that her
testimony required corroboration and should be viewed with caution. (See People
v. Williams (2010) 49 Cal.4th 405, 455; CALCRIM Nos. 334, 335.)
Defendant was charged with a
violation of former Penal Code section 12020, which prohibited “[a]ny person in
this state†from possessing “any short-barreled shotgun.†The element of possession is not onerous to
prove: “Possession may be actual or
constructive. Actual possession means
the object is in the defendant’s immediate possession or control. A defendant has actual possession when he
himself has the weapon. Constructive
possession means the object is not in the defendant’s physical possession, but
the defendant knowingly exercises control or the right to control the
object. [Citation.] Possession of a weapon may be proven
circumstantially for even a limited time and purpose may be sufficient. [Citation.]â€
(In re Daniel G. (2004)
120 Cal.App.4th 824, 831.)
Upshaw testified that she
saw the shotgun for the first time the day before the dispute at the Texaco
station, when she “helped to make the handle.â€
Upshaw described the weapon as being “in both of our possession.†This would seem to constitute possession
“for even a limited time and purpose,â€
thus making her liable for the same offense for which defendant was
being tried. The prosecutor seems to
have agreed: “I didn’t know Miss Upshaw
was going to say that it was jointly their shotgun. Certainly, if it’s jointly their shotgun,
trial court was required to instruct the jury on the principles of accomplice testimony, even
without a request by the defense. (
1136-1137.) The Attorney General
concedes that the instruction ought to have been given, but that this omission
qualifies as harmless. We agree.
“Error in failing to
instruct the jury on consideration of accomplice testimony at the guilt phase
of a trial constitutes state-law error, and a reviewing court must evaluate
whether it is reasonably probable that such error affected the verdict. [Citation.]
[¶] Any error in failing to instruct the jury that it could not
convict defendant on the testimony of an accomplice alone is harmless if there
is evidence corroborating the accomplice’s testimony. ‘ “Corroborating evidence may be slight,
may be entirely circumstantial, and need not be sufficient to establish every
element of the charged offense.†’
[Citation.]†(
“The evidence ‘is sufficient if it tends to connect the defendant with
the crime in such a way as to satisfy the jury that the accomplice is telling
the truth.’ [Citation.]†(People
v. Lewis (2001) 26 Cal.4th 334, 370.)
Here, there was
corroboration of Upshaw’s testimony. To
Officer Goodale she described the vehicle defendant was driving and its
destination. Goodale verified this information
when he found defendant and the described vehicle at the motel Upshaw
identified. It seems fair to presume
that the security videotape of the Texaco further corroborated Upshaw’s
description of the pickup defendant was driving. When Officer Goodale inspected
defendant’s vehicle and found the shotgun, this too corroborated Upshaw’s
description of it as “sawed-off.†The
stock of the shotgun appeared to be hand-made, which corroborated Upshaw’s
testimony that “I helped make the handle . . . out of a piece of
wood.†It also had some duct tape on the
stock, just as Upshaw testified was added by defendant. Further corroboration was that defendant was
wearing the same clothing depicted on the security videotape, which Goodale saw
before going to the Blue Heron motel. In
sum, although it was error not to instruct the jury on viewing Upshaw’s
testimony as that of an accomplice, the error was not prejudicial. (Cal. Const., art. VI, § 13;
This conclusion also dooms
defendant’s contention that contends his trial
counsel was constitutionally incompetent because she did not “request
instructions on accomplice testimony principles.â€
DISPOSITION
The judgment of conviction
is affirmed.
_________________________
Richman,
J.
We concur:
_________________________
Haerle,
Acting P.J.
_________________________
Lambden,
J.
APPENDIX
Using the transcript of the
conversation between Ms. Upshaw (U)and the 911 dispatcher (D), the
relevant portions, with appropriate editorial changes, read as follows:
“D: What’s Your name?
“U: My name is Holly Upshaw.
“D: Holly, what’s going on there?
“U: I don’t know.
“D: Do you know who that person [the one Thom
described as having ‘backed up and slammed into her car’] was?.
“U: Yeah.
“D: What’s his name?
“U: I don’t want to get him caught up in that
‘cause that will get him even more mad.
“D: Okay, well what’s going on today?
“U: he’s demanding money from me that I don’t
have.
“D: Okay, do you need police assistance?
“U: I don’t know.
“D: Are you injured?.
“U: No, I’m not . . . . Everybody knows I am pregnant. He keeps coming after me.
“D: Okay, do you want to speak with a police
officer?
“U: I don’t know.
I guess.
“D: Okay, where can an officer contact you at?
“U: At the gas station. [¶] . . . [¶] I’ll be
right here.
“D: Okay and what’s his name, Holly?
“U: William Seymore.
“D: Okay, and what color is his vehicle?
“U: It’s a blue Chevy pickup.
“D: Do you know where he is going?
“U: Probably back to the Blue Heron.
“D: What room does he stay in?
“U: He doesn’t stay in any of them.
“D: He what?
“U: He stays in the parking lot.
“D: Okay, does he have any weapons on him?
“U: Yeah, he has a sawed-off shotgun in the back
of the truck . . . [¶] . . . [¶]under the back
seat. Under the back seat in a plastic
box.
“D: Did you see it today?
“U: No, I saw it yesterday.
[¶] . . . [¶]
“D: Okay, did you see a firearm today?
“U: No, I didn’t, but I know he has it. But he can’t know that I told you or he will
kill me.
“D: And how much money do you owe him?
“U: I don’t owe him anything.
“D: How much does he think you owe him?
“U: I don’t know.
“D: Okay.
And what color is your vehicle?
“U: I drive a red Nissan Maxima.
“D: Are you going to be standing by for all the
officers in you vehicle?
“U: Yeah.
“D: Okay, we will get them out there. Just call me back if he returns, okay?
“U: Okay.â€
