P. v. Green

Filed 8/26/08 P. v. Green CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Robert S. Tafoya, Judge.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Brian Alvarez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Following a jury trial, Lonzell Green (appellant) was found guilty of unauthorized possession of marijuana in prison (Pen. Code,  4573.6).^[1] In a bifurcated proceeding, the trial court found true the allegation that appellant had a prior strike conviction ( 667, subds. (c)-(j), 1170.12, subds. (a)-(e)).

The trial court sentenced appellant to the midterm of three years, doubled pursuant to the three strikes law, to be served consecutively to the 25 years to life term appellant was then serving for a different conviction.

On appeal, appellant claims the prosecutor engaged in misconduct and that the trial court erred when it denied his Romero^[2]motion. We disagree and affirm.

FACTS

On November 27, 2005, appellant, a prison inmate at Kern Valley State Prison, had a visitor in the visiting room. By way of surveillance cameras, officers observed the visitor and appellant acting in a suspicious manner. The visitor moved her hands off the table to her side pocket. Appellant walked about the room, looking around and standing behind other inmates. Appellant reached into his pocket, pulled out what looked like a small condiment package, bit it open with his teeth, and walked toward an empty backroom.

An officer detained appellant and informed him he would be subject to an unclothed body search. When appellant vehemently objected, the officer handcuffed appellant and moved him to a secured area and performed a search. As the officers pulled off appellants pants, a filled black latex balloon fell out. An opened mayonnaise packet was found in appellants pocket.

The latex balloon was found to contain 30 grams of marijuana. The officer testified that mayonnaise was commonly used by prisoners as a lubricant to secrete contraband into the rectum.

Defense

Inmate Maurice Harris testified that the pants and marijuana belonged to him. He stated that appellant had asked him for a pair of pants to wear for the visit, and Harris gave him the wrong pair. Harris claimed appellant had no idea the marijuana was in the pants.

Appellant testified in his own defense. He claimed that he had borrowed the pants from Harris to look decent for his girlfriend and was unaware of the marijuana in the pants.

Rebuttal

A correctional officer at the prison testified that Harris was moved to the administrative segregation unit on November 22, 2005, and would not have been able to mingle with others in the yard at that time. It was possible that appellant met Harris in the yard prior to the move.

DISCUSSION

1. Did the prosecutor commit misconduct?

Appellant contends three instances of prosecutorial misconduct violated his right to due process, a fair trial, and an impartial jury. He asserts the prosecutor engaged in prejudicial misconduct in his opening statement, during questioning of a witness, and during closing argument. He contends that reversal of his conviction is required because the cumulative prejudicial impact of the individual improprieties was incurable. We disagree.

The applicable federal and state standards regarding prosecutorial misconduct are well established. A prosecutors intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.] (People v. Navarette (2003) 30 Cal.4th 458, 506.)

Prosecutorial misconduct requires reversal only if it prejudices the defendant. (People v. Fields (1983) 35 Cal.3d 329, 363.) Where it infringes upon the defendants constitutional rights, reversal is required unless the reviewing court determines beyond a reasonable doubt that the misconduct did not affect the jurys verdict. (People v. Harris (1989) 47 Cal.3d 1047, 1083.) Prosecutorial misconduct that violates only state law is cause for reversal when it is reasonably probable that a result more favorable to the defendant would have occurred had the prosecutor refrained from the objectionable conduct. (People v. Barnett (1998) 17 Cal.4th 1044, 1133.)

The issue of prosecutorial misconduct is forfeited on appeal if not preserved by timely objection and request for an admonition in the trial court. (People v. Cunningham (2001) 25 Cal.4th 926, 1000.) If an objection has not been made, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct (id. at pp. 1000-1001) or if an objection would have been futile. (People v. Hill (1998) 17 Cal.4th 800, 820-821.)

With these principles in mind, we address each instance separately and conclude that the prosecutors statements do not warrant reversal of the conviction.

A. Opening Statement

Appellant contends the prosecutor first committed misconduct during his opening statement, when he referred to the prison where appellant was housed as a Level 4 institution. We find no prejudicial misconduct.

Prior to trial, the prosecutor moved that defense counsel be precluded from referring, during opening statement, to the anticipated testimony of inmate Harris, claiming ownership of the pants and marijuana, because it was not yet known whether Harris in fact would testify. The trial court denied the motion. Subsequently, in a hearing conducted before opening statements, Harris testified that he did intend to testify at trial and would not invoke his Fifth Amendment right to remain silent.

During his opening statement, the prosecutor explained various terms specifically connected with the prison system that would be heard during trial. He then stated:

You may hear Kern Valley State Prison referred to as a Level 4 institution. [T]he inmates who are housed in Kern Valley are at a security level of four, the lowest security level being one up to the higher security level of four.

Defense counsel requested a sidebar, which was not reported. Following the sidebar, the court reminded the jurors that statements of attorneys are not evidence and that evidence comes from the witnesses. Subsequently, during defense counsels opening statement, he said that Harris would testify and claim ownership of the pants and marijuana.

At the end of the day, defense counsel informed the court he would move for a mistrial based on the prosecutors remarks. The prosecutor explained that his reference to the Level 4 facility had been in response to appellants anticipated defense: trial counsel for appellant had stated that Harris would testify he loaned appellant the pants with the marijuana in a pocket when they were both in a yard, but the prosecutions evidence would show that contact between inmates is restricted at Level 4 facilities. The court noted it had given a curative instruction that was sufficient for the time being and stated that a motion for mistrial could be addressed at the end of trial. The court also denied appellants renewed motion made when the prosecution rested its case. At that time, the prosecution had presented no evidence regarding Level 4 facilities.

The function of an opening statement is not only to inform the jury of the expected evidence, but also to prepare the jurors to follow the evidence and more readily discern its materiality, force, and meaning. [Citation.] (People v. Dennis (1998) 17 Cal.4th 468, 518.) Unquestionably, the prosecution may in its opening statement refer to evidence which it believes will be produced. [Citation.] (People v. Barajas (1983) 145 Cal.App.3d 804, 809.) But a prosecutor may not use the opening statement as a means of bringing patently inadmissible evidence before the jury. (See People v. Davenport (1995) 11 Cal.4th 1171, 1212-1213, overruled on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5; see, e.g., People v. Laursen (1968) 264 Cal.App.2d 932, 937-938, disapproved on another ground in Mozzetti v. Superior Court (1971) 4 Cal.3d 699, 703 [prosecutor improperly referred to defendants status as ex-convict when setting out a witnesss expected testimony].)

Here, the prosecutor did not present otherwise inadmissible evidence to the jury. Instead, he merely referred to admissible evidence that he anticipated presenting at trial in order to counter appellants expected defense. The fact that this evidence was not actually adduced at trial does not render a prosecutors reference to it during opening statement prosecutorial misconduct. (See, e.g., People v. Boyette (2002) 29 Cal.4th 381, 446-447.)

In any event, we find no prejudice. Addressing the issue of prosecutorial misconduct in an opening statement, in People v. Barajas, the court explained:

While the test for determining prejudice arising from a variance between the opening statement and the proof is no longer bad faith, three tests determine if a defendant has been prejudiced. First, was an objection lodged ? [Citations.] Second, was the jury informed by the court or by the prosecution opening statement is not evidence? [Citations.] Third, did opening statement result in a violation of the defendants Sixth Amendment right to confrontation? [Citation.] (People v. Barajas, supra, 145 Cal.App.3d at p. 809, fn. omitted.)

Here, defense counsel requested a sidebar, implying that a contemporaneous objection was lodged. But the court twice instructed the jurors that statements of attorneys are not evidence: first, along with general instructions prior to opening statements and, second, immediately after the objection in question. In addition, immediately prior to opening statements, the court instructed:

At this time the lawyers will be permitted to make an opening statement . An opening statement is not evidence. [] An opening statement is simply an outline by counsel of what he believes or expects the evidence will show in this trial. Its sole purpose is to assist you in understanding the case as it is presented to you.

We assume jurors generally understand and follow instructions. (People v. Delgado (1993) 5 Cal.4th 312, 331; People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)

As to appellants claim that the prosecutors statement denied him his Sixth Amendment right to confrontation because [t]he prosecutor, serving as his own unsworn witness, is beyond the reach of cross-examination (People v. Bolton (1979) 23 Cal.3d 208, 215, fn. 4), we have noted above the prosecutors theory regarding the admissibility of evidence concerning Level 4 restrictions. Certainly, appellant has failed to show that the prosecutors statement during opening rises to the level of being so patently inadmissible as to charge the prosecutor with knowledge that it could never be admitted. (People v. Wrest (1992) 3 Cal.4th 1088, 1108.)

Finally, as to prejudice, we note that it was obvious at trial that appellant was an inmate at a correctional institution, and the prosecutors brief reference to a Level 4 institution was not repeated.

B. During Questioning

Appellant next contends the prosecutor committed misconduct by violating the courts order prohibiting speaking motions. We disagree.

Prior to trial, the trial court granted the prosecutors motion in limine that counsel be precluded from making speaking motions. During defense counsels cross-examination of an officer, the prosecutor objected at one point, stating: Again, Your Honor, Im going to object. That calls for a narrative. There are The court interjected, stating, I dont want a speaking objection. Calls for a narrative. Overruled.

Appellants claim in this instance is not reviewable on appeal because he made no timely assignment of misconduct, nor did he request the jury be admonished to disregard the impropriety. (People v. Mayfield (1997) 14 Cal.4th 668, 753; People v. Clair (1992) 2 Cal.4th 629, 662.) In any event, appellants assignment of error lacks merit, and we find no prejudice. (People v. Warren (1988) 45 Cal.3d 471, 480.)

C. Closing Statement

Finally, appellant argues that the prosecutor committed misconduct during his closing argument because of his attack on appellants character and the integrity of defense counsel. We find no prejudicial error.

During closing, the prosecutor stated:

I think its very, very significant that the last person to testify for the defense in this case was [appellant] himself. It would have had a different impression, I think, on you people if [appellant] had got up here and told you everything he knew about this situation, and then Mr. Harris were called to testify and, you know, if it didnt match up, why [appellant] would just have to live with that, but by testifying last, [appellants] story has the opportunity to be made consistent with the evidence thats gone before.

Defense counsel objected to the statement as an [i]mproper argument as [counsel was] not on trial. Following a sidebar, the trial court told the jury that it is the attorney who decides the order in which witnesses are called and reminded the jury again that attorneys statements are not evidence.

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. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature. (People v. Hill, supra, 17 Cal.4th at p. 819.)

As for appellants claim that the prosecutor attacked appellants character, calling into doubt the testimony of a defendant is an acceptable practice so long as the prosecutor argues inferences based on evidence before the jury rather than the prosecutors personal experience or from evidence outside the record. (People v. Mayfield, supra, 14 Cal.4th at pp. 781-782.) In Mayfield, the court concluded the prosecutor had not committed misconduct by expressing his belief that the defendant had lied on the stand because this belief was based on the evidence presented to the jury. (Id. at pp. 782-783.) In attacking the credibility of a defense witness, a single reference to a witness as having perjured himself, based on an analysis of the evidence before the jury, may be unobjectionable. (People v. Ellis (1966) 65 Cal.2d 529, 540.) But where the prosecutor repeatedly refers to the defendant as a perjurer, the argument constitutes misconduct. (Id. at pp. 540-541.) Here, the prosecutor simply called into doubt appellants testimony because it followed and tracked the testimony of the witness, Harris.

Further, in direct response to appellants objection, the trial court admonished the jury that an attorneys statements are not evidence, and that it was the attorneys decision as to what order to call witnesses. It is presumed that jurors understood and followed the instructions, and appellant has not established otherwise. (People v. Delgado, supra, 5 Cal.4th at p. 331; People v. Mickey, supra, 54 Cal.3d at p. 689, fn. 17.)

As for appellants further claim, it is true that a prosecutor commits misconduct when he or she attacks the integrity of or casts aspersions on defense counsel. (People v. Hill, supra, 17 Cal.4th at p. 832.) It is generally improper for the prosecutor to accuse defense counsel of fabricating a defense or to imply that counsel is free to deceive the jury, but a prosecutor has wide latitude in describing the deficiencies in opposing counsels tactics and factual account. (People v. Bemore (2000) 22 Cal.4th 809, 846.) Even were we to agree that the prosecutors comment was somehow an attack on defense counsel and could be labeled misconduct, we do not think the statements deprived appellant of a fair trial nor caused a miscarriage of justice.

Appellants contrary contention notwithstanding, the case here was not close. The evidence against appellant was strong. Both appellant and his visitor aroused the suspicions of the guards with their actions. When appellant was searched and his pants removed, a balloon filled with 30 grams of marijuana was found. Although Harris testified that the pants and drugs belonged to him, he also testified that he was five feet seven or eight inches and weighed about 250 pounds. His waist measured 49 inches. Appellant testified that he was about the same height as Harris, five feet six inches, but he weighed between 180 and 186 pounds and his waist measured 35 inches.

On such a record, even assuming the prosecutors conduct constituted a deceptive or reprehensible method to persuade the jury in violation of state law, such misconduct was not prejudicial. Given the entirety of the record, the prosecutors alleged misconduct was not prejudicial pursuant to either Chapman v. California (1967) 386 U.S. 18, 24, or the lesser standard of People v. Watson (1956) 46 Cal.2d 818, 836.

D. Cumulative Error

Finally, appellant argues that the cumulative impact of the prosecutors misconduct deprived him of a fair trial. We disagree. We have either rejected appellants claims of error or found any errors, assumed or not, to be not prejudicial on an individual basis. Viewing the errors as a whole, we conclude that the errors do not warrant reversal of the judgment. (People v. Stitely (2005) 35 Cal.4th 514, 560.)

2. Did the trial court err when it denied appellants motion to strike his prior strike?

Appellant was convicted of unauthorized possession of marijuana in prison. In a bifurcated proceeding, the trial court found true the allegation that appellant had a 1991 strike conviction for murder. At sentencing, defense counsel asked that the court strike appellants prior strike under section 1385. Appellant asserts on appeal that the trial court abused its discretion when it denied the motion to strike. We disagree.

Section 1385, subdivision (a) provides in relevant part, The judge or magistrate may, in furtherance of justice, order an action to be dismissed. In Romero, the California Supreme Court concluded that section 1385[, subdivision ](a) permit[s] a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law. (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530.)

In determining whether to strike a prior conviction in furtherance of justice, a court must consider both the constitutional rights of the defendant, and the interests of society represented by the People . (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 530.) The trial court must consider the defendants background, the nature of the current offense and other individualized considerations (id. at p. 531), including all of the relevant factors, both aggravating and mitigating (People v. Tatlis (1991) 230 Cal.App.3d 1266, 1274). As further clarified in People v. Williams (1998) 17 Cal.4th 148, our Supreme Court held:

[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, in furtherance of justice pursuant to section 1385[, subdivision ](a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. (Id. at p. 161.)

Appellant asserts the trial court abused its discretion because the remoteness of the prior conviction was totally disregarded due to the circumstance of appellant being incarcerated during the intervening time. According to appellant, who was serving a 25 years to life plus four-year term, he led a conviction-free life in the intervening time, even in the prison environment where he was subject to increased scrutiny.

We review a ruling upon a motion to strike a prior felony conviction under a deferential abuse of discretion standard. (People v. Williams, supra, 17 Cal.4th at p. 162.) Appellant bears the burden of establishing that the trial courts decision was unreasonable or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977 [presumption that trial court acts to achieve lawful sentencing objectives].) We do not substitute our decision for that of the trial court. (People v. Myers (1999) 69 Cal.App.4th 305, 310.) It is not enough to show that reasonable people might disagree about whether to strike one or more of [the defendants] prior convictions. (Ibid.) [A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (People v. Carmony (2004) 33 Cal.4th 367, 377.)

We find no indication in the record that the trial court did not properly weigh the various factors. Appellants prior criminal history began in 1988 with various drug and Vehicle Code violations. As an adult, appellant was convicted of several misdemeanor Vehicle Code violations, and he was on felony probation for transportation or sale of marijuana (Health & Saf. Code,  11360) when he committed first degree murder with the special allegation that he personally used a firearm in the commission of the offense ( 187, 12022.5, subd. (a)). He was in prison when he committed the current offense.

At the motion to strike the prior conviction, defense counsel argued that the current charge would have been a misdemeanor had it not occurred in state prison, and it had been a long time since he had a prior conviction. The prosecutor disagreed, stating that appellants conduct must be considered recent because hes been incarcerated since the time of the prior offense. He also argued that the seriousness of his prior offense would be detracted from if the court struck it. In addition, the prosecutor argued that the facts of the current offense, namely that appellant presented perjured testimony and that the drugs were smuggled into prison, merit[] the most severe treatment from the Court.

The trial court agreed with the People, stating:

Im persuaded by the argument set forth in the Peoples statement regarding sentencing, in that the nature of the offense, particular the fact that he called Mr. Harris [to] testif[y]. I just found him to be totally lacking credibility, and this is more than just possession. There was, from the evidence presented, a strong inference to be drawn that this was smuggling in prison; so I think the recommendation prepared by probation is appropriate, and Im going to follow the probation officers report. [] Im going to deny the request to strike the prior per People v Romero, and for the reason that, again, I dont see this as being the conviction being remote because hes been in prison since his last conviction.

It is clear that the trial court did consider all of the relevant factors. And since it did so, it did not act arbitrarily or capriciously in denying appellants motion to strike his prior conviction. Accordingly, the trial court did not abuse its discretion in denying that motion. (People v. Jordan (1986) 42 Cal.3d 308, 318.)

DISPOSITION

The judgment is affirmed.

__________________________

DAWSON, J.

WE CONCUR:

_______________________________

CORNELL, Acing P.J.

_______________________________

KANE, J.

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^[1]All further statutory references are to the Penal Code unless otherwise stated.

^[2]People v. Superior Court (Romero) (1996) 13 Cal.4th 497.