P. v. Rodriguez

Filed 2/18/10 P. v. Rodriguez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed.

Susanne C. Washington, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted defendant Christian Alfonso Rodriguez of second degree robbery. The court sentenced him to three years probation. One of the terms and conditions of his probation was 365 days in Orange County jail. Defendant contends that his conviction should be reversed because of prosecutorial misconduct. We disagree and affirm.

I

FACTS

At around 4:00 p.m. on July 15, 2008, 60-year-old Huan Duc Nguyen, on his break from work, took a walk on First Street in Santa Ana. Nguyen, wearing headphones, was listening to a portable radio clipped to his belt. Defendant, a male youth, and a female youth walked by Nguyen in the opposite direction. As they passed, Nguyen felt hands removing his radio and certain other objects, later determined to be his cell phone and county badge, from his belt. Nguyen turned around, and saw defendant and the male youth holding his property. He said: I was scared because I was afraid that somebody was going to attack me.

Captain Dean Johnson of the Santa Ana Fire Department saw the four individuals from his fire truck about 500 feet away. According to Johnson, there was a struggle going on, with everyone moving, and arms flailing, grabbing, touching. The engineer in the fire truck sounded the horn, and defendant, the male youth, and the female youth ran across the street. The fire truck pursued the two males towards a Sav More Thrift store parking lot. Johnson left the truck and pursued defendant and the male youth on foot. Defendant took off his shirt as he ran. Johnson stopped his pursuit when he believed the male youth had a weapon. He saw the two males climb over a wall, losing visual contact with them.

Sav More employee Juan Lobato and truck driver Carlos Luna were unloading donated items from a truck behind the store. Defendant and the male youth, both sweating as if they had been running, approached Luna and Lobato. Defendant asked if they could help with the work. Luna declined the offer, but the two jumped into the truck anyway and began unloading bags. Defendant and the male youth put on shirts from the clothing piles in the truck.

Johnson returned to the fire truck, and directed it behind the Sav More store. He asked a store security guard if he had seen two fleeing men. The guard indicated that two men did run through the open gate. Santa Ana Police Officer Michael Claborn went to the rear loading area, and noticed defendant and the male youth in the back of the truck, and told them to come down. He found some brass knuckles nearby. Johnson identified defendant, stating he had no doubt that defendant was one of the individuals he had seen struggling with Nguyen.

Nguyens cell phone was found in the middle of the street. His leather pouch was found in a parking lot.

At the start of the prosecutors rebuttal argument, she stated, But one of the things that I need to address, first of all, [defense counsel] kept saying [the prosecutor] knows this, [she] knows this. I have the duty the job to prove this case beyond a reasonable doubt. The prosecutor further stated that, as a deputy district attorney she had an ethical and moral duty not to bring a case before a jury unless she believed she could prove it. Defense counsel objected after the words bring a case before. The prosecutor finished her sentence before the court could rule on the objection, and defense counsel objected again when the statements concluded.

The prosecutors comments were apparently in response to statements made by defense counsel during his argument. Defense counsel said: Even in her opening statement [the prosecutor] said Mr. Rodriguez was around Mr. Nguyen. She knew even before this case started that she was going to have so many holes in her evidence against Mr. Rodriguez she was going with that argument from the beginning. Defense counsel further stated, with respect to the prosecutor: She knows that the direct evidence shes presented is totally inadequate. She knew it even in juror selection when the first thing she asked was lets talk about circumstantial evidence. In addition, defense counsel said: This is absolutely a case about circumstantial evidence, ladies and gentlemen. The prosecution knows it. That is why youre hearing so much circumstantial evidence. That is why she is talking so much about these things. She knows that the direct evidence she presented is totally inadequate to prove that Mr. Rodriguez committed robbery. The prosecutor did not object to any of the above statements by defense counsel.

The court sustained defense counsels objection to the prosecutors remarks. At sidebar, outside the presence of the jury, the court determined the statements constituted misconduct, but were not egregious and could be cured with an admonition to the jury. The court heard extensive argument from both counsel. The prosecutor said she had intended to remind the jurors they are the trier of the facts. She explained why she argued as she did: He accused me of prosecutorial misconduct throughout his argument without saying it . . . .

The court admonished the jury, as follows: I am going to admonish you that this last comment by the deputy district attorney, although unintentional, was improper. It was [an] improper argument concerning the statement that I have a duty, a job to prove this case beyond a reasonable doubt. As a deputy district attorney, and the office of the district attorney has a moral and ethical duty not to bring a case before any juror unless we can prove it. That was [an] improper comment[]. And again its unintentional, inadvertent. [] I advise you to disregard that comment, the deputy district attorney, attorney of the office of the district attorney has a moral, ethical duty not to bring a case before any juror unless we believe we can prove it. That is irrelevant with respect to this case. [] And as I indicated to you on jury selection that the district attorneys office files criminal charges against defendants all the time in California. Some defendants are found guilty. Some defendants are found not guilty. Its entirely the domain of the jury to make that decision, to make that call, okay. So just because the district attorneys office has filed charges against a defendant, that doesnt mean anything. [] I have already instructed you the fact that a defendant has been the fact that hes been arrested, charged with these crimes and brought to trial, that doesnt mean anything. That is not evidence of guilt. You cannot infer any inference of guilt because of that, all right. The burden of proof is entirely upon the prosecution to prove the case beyond a reasonable doubt, and its your domain to determine in your deliberations whether the prosecution has met that burden. [] Each of you understand the courts admonition? Answer out loud. [] The Jury: Yes. [] The court: So I am going to advise you to disregard that portion of the district attorneys argument. Again, it was unintentional. It was inadvertent. But it was improper. I want to make sure that you dont give that any consideration whatsoever, you follow the instructions that I give you concerning the case, okay, ladies and gentlemen? [] The jury: Yes.

At the conclusion of argument, defense counsel moved for a mistrial. The court denied the motion. The court asked counsel: Do you wish anything else in terms of any curative admonition or are you satisfied with the courts response, [defense counsel]? Defense counsel responded: I am satisfied with the admonition.

II

DISCUSSION

On appeal, defendant argues the prosecutors statements constituted prejudicial misconduct because they placed the dignity and prestige of the district attorneys office behind a personal assertion in the belief of defendants guilt, and on matters outside the evidence. The Attorney General contends the prosecutors statements were proper.

It is settled that 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. [Citation.] (People v. Wharton (1991) 53 Cal.3d 522, 567.) A prosecutor cannot justify improper behavior by claiming that it was a response to provocation by opposing counsel. (People v. Hill (1998) 17 Cal.4th 800, 819-820; People v. Bain (1971) 5 Cal.3d 839, 849.) A prosecutor may not express a personal opinion or belief in the guilt of the accused when there is a substantial danger that the jury will view the comments as based on information other than evidence adduced at trial. [Citations.] (People v. Lopez (2008) 42 Cal.4th 960, 971.) The danger that the jury will view the prosecutors expressed belief in the defendants guilt as being based on outside sources is acute when the prosecutor offers his opinion and does not explicitly state that it is based solely on inferences from the evidence at trial. [Citation.] (Ibid.) The prosecutors comments must be evaluated in context. (Ibid.)

Prosecutorial misconduct is reviewed for prejudice. [Citation.] (People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1268.) To constitute deprivation under the Fourteenth Amendment to the federal Constitution, prosecutorial misconduct must infect the trial with such unfairness as to make the conviction a denial of due process. (Donnelley v. DeChristoforo (1974) 416 U.S. 637, 642-643; People v. Hill, supra, 17 Cal.4th at 819.) Misconduct that infringes upon a defendants Constitutional rights mandates reversal of the conviction unless the reviewing court determines beyond a reasonable doubt that it did not affect the jurys verdict. (Chapman v. California (1967) 386 U.S. 18; People v. Hall (2000) 82 Cal.App.4th 813, 817.) 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 . . . the jury[,] (People v. Morales (2001) 25 Cal.4th 34, 44) and there is a reasonable likelihood the jury applied or understood the comments complained of in an erroneous or improper manner (People v. Frye (1998) 18 Cal.4th 894, 970). Such misconduct is cause for reversal only when it is reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the untoward comment. (People v. Milner (1988) 45 Cal.3d 227, 245; People v. Watson (1956) 46 Cal.2d 818.) Because injury to defendant occurs regardless of the prosecutors intent, the statements constituting misconduct need not have been made intentionally or in bad faith. (People v. Hill, supra, 17 Cal.4th at pp. 822-823; People v. Bolton (1979) 23 Cal.3d 208, 213-214.)

It appears from the context of the statements at issue that the prosecutor had not yet finished articulating her thoughts. In fact, she informed the court she intended to say more. Though the prosecutor may have intended to add more to her remarks, defense counsels objection and the subsequent sidebar prevented that. The state of the record before us reflects that the prosecutor impermissibly invited the jury to convict defendant based on her belief in her ability to prove defendant guilty and on the prestige of her office, matters outside the evidence. (People v. Alvarado (2006)141 Cal.App.4th 1577, 1585.)

Respondent tries to distinguish between a belief in guilt and a belief in the ability to prove guilt. However, because the prosecutor framed the statements around a moral and ethical duty of district attorneys to pursue charges only against defendants whose guilt they can prove beyond a reasonable doubt, the statements implied that the district attorneys office had already done the work of assessing guilt before bringing the case to trial. The statements referenced no evidence adduced at trial, and cannot be considered fair comments on the evidence.

Respondent compares the instant case to People v. Green (1980) 27 Cal.3d 1, overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225. In Green, the prosecutor concluded his argument by stating to the jury, I appreciate your attention, your being here, and I ask you to consider carefully all of that evidence, the instructions, and reach a fair, just, honest conclusion. Im convinced in my mind it will be the same conclusion I reached several months ago. (People v. Green, supra, 27 Cal.3d at p. 35.) In determining that the statement did not refer to evidence outside of that adduced at trial and did not constitute misconduct, the court reviewed the remark in the context of the prosecutors entire argument. The court noted that immediately before the statement, the prosecutor had referred directly to the evidence. (Id. at p. 36.) Further, [t]hroughout his argument, the district attorney repeatedly emphasized to the jurors that any opinion he expressed to them concerning defendants guilt was based on the evidence and legitimate inferences therefrom,and he reminded them again and again that they were the sole judges of the facts and their verdict must be based on their own conclusion as to the evidence. (Id. at pp. 35-36, fn. omitted.)

In the instant case, the prosecutor did not preface her statements with a reference to the evidence, and it was not clear in the context of the prosecutors previous statements that she was referring only to evidence adduced at trial. Accordingly, Green does not support the argument the prosecutors remarks were proper.

Respondent also cites People v. Wiley (1976) 57 Cal.App.3d 149. The prosecutors comments in Wiley, however, did not refer to the moral or ethical duties of the district attorneys office. (Id. at p. 163.) As a result, Wiley does not support the argument the statements were proper.

The prosecutors statements invited the jury to rely both on the moral and ethical duties of the district attorneys office and on the prosecutors pretrial assessment of the evidence. The statements thus created a substantial danger the jury might decide the case based on information not produced at trial. Under these circumstances, the prosecutors statements infected the trial with such a degree of unfairness as to constitute a denial of defendants constitutional rights under the due process clause of the Fourteenth Amendment.

With regard to state law, though the prosecutor may not have intended the statements to deceive, they appear to have been intended to persuade the jury of defendants guilt based on matters not in evidence. As a result, the statements constituted misconduct under state law as well. (People v. Morales, supra, 25 Cal.4th at p. 44.)

The trial court properly concluded the prosecutors statements constituted prejudicial misconduct, and admonished the jury to disregard them. On appeal, defendant contends the court erred in the wording of its admonition to the jury.

Defendant states in his brief: [T]he trial courts admonishment was insufficient and in fact may have caused further prejudice because the judge vouched for the prosecutor by repeatedly stating that her misconduct was unintentional and inadvertent. But at trial, he did not object to the courts admonishment. In fact, the court specifically asked defense counsel if any different admonition was requested, and counsel responded: I am satisfied with the admonition.

The choice of when to object is inherently a matter of trial tactics not ordinarily reviewable on appeal. [Citation.] (People v. Riel (2000) 22 Cal.4th 1153, 1197.) [A] trial court is presumed to have been aware of and followed the applicable law. [Citation.] [Citations.] (People v. Sullivan (2007) 151 Cal.App.4th 524, 549.) An appellate court must presume that the decision of the trial court is correct. (Ibid.) A defendants failure to object at trial is generally considered a waiver of his right to raise an issue on appeal. (People v. Williams (1982) 128 Cal.App.3d 981, 990.)

Defendant cites nothing in the record which indicates the jury interpreted the courts remarks in the way he argues. The court clearly told the jury: just because the district attorneys office has filed charges against a defendant, that doesnt mean anything. The court properly emphasized that it is the domain of the jury to determine the guilt or innocence of a defendant, and that [t]he burden of proof is entirely upon the prosecution to prove the case beyond a reasonable doubt . . . .

Additionally, before the first witness was called, the court instructed the jury: The evidence comes from the witness stand and any exhibits that are admitted and anything I tell you to consider as evidence, but the lawyers statements or questions are not evidence. When the court later instructed the jury, CALCRIM 222 was read, which states in part: You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom. Evidence is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence.

It is apparent in the record before us the court was willing to consider any alternative or additional modification the defense might request. By failing to request a different admonition than the one given by the trial court, defendant waived this issue for appeal. (People v. Adanandus (2007) 157 Cal.App.4th 496, 512.)

Nonetheless, we find that under the circumstances here, we cannot conclude the trial court erred in admonishing the jury. The court carefully and completely instructed the jury to disregard the prosecutors comments and to decide the case only on the evidence.

With regard to whether or not the admonition cured any resulting prejudice against defendant, there was significant and compelling evidence that defendant committed the robbery. (Pen. Code 211, 212.5 subd. (c).) Johnson saw arms flailing, grabbing, touching, and Nguyen was in fear for his safety. Nguyen saw two males holding his property immediately after he felt the property being removed from his belt. Johnson saw defendant run away after the fire truck sounded its horn, and pursued defendant and the male youth, losing sight of them as they climbed a wall next to the Sav More Thrift store. Lobato and Luna identified defendant as one of the two individuals who approached them at the rear of the Sav More Thrift store, sweating as if they had been running. Defendant and the male youth climbed in the rear of the truck and unloaded bags despite the fact that Luna declined their offer to help. Defendant and the male youth then changed their shirts and put on hats. Johnson positively identified defendant as one of the two males he saw struggling with Nguyen. His property was later discovered in the street and in a parking lot. Accordingly, there is strong evidence defendant harbored the intent to take Nguyens property from him at the time he applied force or fear. (People v. Lewis (2008) 43 Cal.4th 415, 464.)

This is not a close case and reversal is not warranted. The prosecutors comments were cured by the courts admonition and instructions to the jury. Even if the jury ignored the courts admonition and did improperly apply the prosecutors comments, we conclude beyond a reasonable doubt that the error did not contribute to the verdict, (Chapman v. California, supra, 386 U.S. 18; People v. Watson, supra, 46 Cal.2d 818) and that there is no reasonable probability there would have been a result more favorable to defendant but for the prosecutors misconduct. (People v. Watson, supra, 46 Cal.2d 818.)

III

DISPOSITION

The judgment is affirmed.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON, J.

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