P. v. Rabb
Filed 12/10/12 P.
v. Rabb CA4/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
WARREN ANTHONY
RABB,
Defendant and Appellant.
D059073
(Super. Ct. No.
SCD216083)
APPEAL
from a judgment of the Superior Court of
County, John S. Einhorn, Judge. Reversed.
A
jury convicted Warren Anthony Rabb of two counts of
187, subd. (a); counts 1 & 2) and one count of
count 3). The jury also found true, as
to all counts, that Rabb personally used a firearm (§ 12022.5, subd. (a));
personally discharged a firearm causing great bodily injury or death (§ 12022.53,
subd. (d)); and personally inflicted great bodily injury on the victims (§
12022.7, subd. (a)). In addition, the
jury found true a special circumstances allegation that Rabb was convicted of
The
court sentenced Rabb to prison for two consecutive life terms without parole
plus 25 years to life for the firearm enhancement under section 12022.53,
subdivision (d) on each of the first two counts, and 15 years to life plus 25
years to life for the firearm enhancement under section 12022.53, subdivision
(d) for the third count. The court
stayed the sentence of the remaining enhancements. The total sentence consisted of two life
terms without the possibility of parole, plus 90 years to life.
Rabb
appeals, contending the court abused its discretion by denying his motion to
dismiss for the prosecution's delay in charging Rabb. He also argues his
when: (1) the prosecutor misstated the
law regarding the appropriate burden of proof during her closing argument and
(2) the court prohibited Rabb's expert witness from testifying about certain
issues. We determine the court did not
abuse its discretion in denying Rabb's motion to dismiss, but conclude the
prosecutor prejudicially misstated the law as to the reasonable doubt standard
during her rebuttal closing argument, and reverse the judgment for this
reason. We do not reach Rabb's assertion
that his Sixth Amendment rights were
violated because the court, as a discovery sanction, did not allow Rabb's
expert witness to offer certain testimony.
STATEMENT OF FACTS
The Shootings
After using
methamphetamine earlier in the day, Hong "Bethy" Nguyen rode with her
boyfriend, Maroun Khalife, in his car to Midvale Drive
in San Diego in the early evening on January 23, 2002. Khalife planned to sell a stereo to Jerry
Rico who lived in the area. Upon
arriving, Bethy saw Rico standing in his driveway and then walk across the
street to where Khalife had parked his car.
While Khalife
and Rico spoke through the driver's side window, a silver SUV pulled up and
blocked Khalife's car from easily leaving.
An African-American male, between 17 and 21 years old, got out of the
passenger side of the SUV and walked straight to Rico saying something like,
"Give me the stuff." When Rico
replied, "What stuff?" the person pulled out a gun. Bethy ducked forward as far as she could while
Khalife sat still and said nothing, then tried to start his car. The person with the gun told Khalife not to
start his car and threatened to shoot him if he tried to leave. Khalife stopped trying to start the car. Bethy testified that she then heard two sets
of gunshots, the first outside the car, and then into the car. Khalife slouched over her, and Bethy could
tell he was hurt. She felt her stomach
and arm go numb because she had been shot.
She heard what sounded like someone rummaging through the car. Eventually, someone helped Bethy out of the
car and she was taken to the hospital where, after multiple surgeries, she
ultimately recovered.
Bethy described
the shooter as wearing a jacket and being relatively dark skinned. It appeared to Bethy that the shooter was
targeting Rico and the fact she and Khalife were there was an unfortunate
coincidence. Bethy said she had never
seen Rabb before, outside of a courtroom.
Several
neighbors on Midvale Drive testified about what they heard or saw of the shootings. Lisa Peoples heard gunshots, looked outside,
saw a body in the street, and saw a young African-American with a gun in his
hand run around the back of the SUV and jump back in the passenger side. Peoples described the shooter as wearing a baseball
cap, a sweatshirt-like top, and dark pants.
The SUV then drove away. Other
neighbors testified that they heard shots and saw a white or silver SUV leaving
the scene.
Anthony Quinley,
a taxi driver, was driving a passenger to a house on Midvale Drive
when he came up behind the SUV, with doors and rear hatch open, blocking the
street. Quinley saw two males standing
between the SUV and another car (presumably Khalife's car), apparently talking
normally. Then the passenger in
Quinley's cab said, "He has a gun."
Quinley looked up, saw someone shooting, and started backing up, away
from the confrontation, hearing gunshots as he left. Quinley described the shooter as taller than
the victim, but had difficulty recalling the shooter's clothes.
The medical
examiner's analysis showed Rico and Khalife were killed by multiple gunshot
wounds. Bethy was struck by the four
bullets that exited Khalife's body.
Although Bethy's wounds were life threatening, she recovered after
multiple surgeries and an extended hospital stay.
Miscellaneous Evidence
Bethy testified
that Khalife was associated with the Oriental Mafia Crips (OMC) and went by the
nickname Subzero. Khalife had particular
problems with members of one of OMC's rivals, the Tiny Rascal Gang (TRG). Bethy was present at confrontations between
Khalife and TRG members. Once Khalife
fought with TRG members called Gecko and Shogun at a 7-11. Another time, in 2001, Khalife and Bethy were
in Khalife's car, stopped at a red light, when they saw TRG members drive by in
the opposite direction. Bethy saw one
TRG member named Shiny in the other car, but did not recognize the others. Moments later, several people ran up to
Khalife's car and bashed the windows.
Bethy thought there were more than three attackers, one of whom, hitting
the passenger side window, was African-American. A window on the driver's side was smashed,
and then the attackers left.
The
day after the shooting, police searched the area and found a silver Nissan
Xterra SUV parked in a Navy housing development on Home Avenue. The car had two different license plates and
had red stains on the outside. The owner
of the Xterra had reported it stolen from a North Park street on January 17,
2002. The other license plate on the
silver Xterra was stolen from a white Xterra sometime in January 2002.
Several blood
samples found on the SUV matched Rico's DNA.
Crime lab personnel took 180 fingerprint impressions from the silver
Xterra, compared those with the known prints of 31 different people, and found
70 matches, including 29 from the owner and his partner. Some of the matched prints were from Rabb and
four of his friends: eight from Rabb,
all clustered near the gas tank opening and rear tail light on the passenger
side; nine from Darnell Butler, including on the owner's manual and on a
receipt that had blood on it; one from Christian Maldonado on a DMV envelope;
one from Carolina M. on the inside of the driver's door window; and one from
Antwuan Simms on the license plate stolen from the white Xterra.
On January 10,
2002, a residence in City Heights was burglarized. Among other things, a registered Daewoo
nine-millimeter handgun was stolen. On
February 25, 2004, police found the stolen gun while serving a search warrant
on the residence of someone named Derrick Mack.
Forensic analysis showed that the casings and bullets from the Midvale
Drive crime scene were fired from that gun.
Carolina M.
In January 2002,
Carolina M. was 15 years old and lived across an alley in City Heights from
Rabb. She and Rabb were among several
teens, including Destini Speaks, who lived with the Rabb family; brothers
Christian and Eduardo Maldonado; and Tanaeka Moore, Carolina M.'s best friend
and Simms's girlfriend; who hung around in the alley. Carolina M. knew Butler as friends with Rabb,
but Butler rarely hung around in the alley.
Carolina M. and Rabb had an intermittent sexual relationship. Carolina M. believed Rabb was in TRG and went
by the name Smoke. Carolina M. said
Eduardo was not in a gang, but looked up to Rabb, followed him everywhere, and
called himself Little Smoke.
Carolina M.
testified that she saw Rabb in a silver SUV twice on the same evening. According to Carolina M., Butler pulled up to
the front of the alley in the SUV. The
passenger side window was down.
"Some kid named Dirty B," a dark-skinned Cambodian, was either
in the car or the alley. Rabb and
Christian got in and the SUV drove off.
Carolina M. said she, Moore, Simms, Eduardo, and possibly Speaks were in
the alley at the time. The SUV returned
20 to 40 minutes later. Carolina M. saw
Rabb get out and Christian come running around from the other side. Carolina M. described Rabb as "kind of
stiff" and Christian as "paranoid . . . jumpy . . . not
Christian."
Carolina M. said
Rabb reached into his pocket, pulled out an inch or two of what looked like the
butt end of a gun and said, "Take this." She declined.
Rabb then went inside his house.
While Rabb was
inside for 10 to 20 minutes, Christian said, "They did a
drive-by." Carolina M. asked if he
was serious and Christian said yes, adding something about "Asians and a
lady, a girl." Carolina M. said
Christian "regularly lied about things to make him[self] look tougher than
he really was." After Christian
made that statement, Rabb came back to the alley wearing a different jacket and
briefly walked toward the canyon at the end of the alley. Carolina M. believed Rabb was wearing a black
and white flannel jacket when he got in the SUV.
After
the night of the shootings, around March 5, Rabb told Carolina M. the police
were trying to pin something on him that he did not do and he was going to
South Carolina where he had family.
Other than in court, Carolina M. never saw Rabb again.
San Diego police
interviewed Carolina M. twice, once in October 2002 and again in April
2007. She also met with the prosecutor
three or four times prior to trial, reviewing her statement each time. Carolina M. knew the events she described in
the alley occurred in January 2002, but she was not sure of the exact
date. In the October 2002 interview, she
said it happened in early or mid-January.
In that interview, Carolina M. told the police that the people who left
the alley were Butler, Demetrius Harrell, Dirty B., Christian, and Rabb. She also said Rabb was wearing a sweater when
he left in the SUV. She later mentioned
Rabb was wearing a black and white flannel jacket in an unrecorded third
interview with the police in 2008.
In October 2002,
Carolina M. also told police that Rabb "threw two guns at" her when
he returned to the alley. Carolina M.
denied ever being near the silver SUV and could not explain how her fingerprint
was found on the driver side window. She
also denied being upset in October 2002 that Rabb had other girlfriends,
although some letters she wrote to Rabb that month and the following January
suggested otherwise.
The Camp Barrett Conversations
In
2002, Joe Banh was in juvenile custody
at Camp Barrett, along with Rabb. Banh
had been a friend of Khalife. Although
at trial Banh denied he or Khalife were gang members, in a 2002 interview with
police, he said they were both members of OMC and Banh knew Rabb was with the
rival TRG. Banh testified that he knew
of Rabb from the streets and did not like him.
Detective Bruce
Pendleton testified about two interviews with Banh, the first in 2002. In 2002, Banh told detectives that during
recreational "hill time" one day at Camp Barrett, there was an
argument between Rabb and Banh during which Rabb said something to the effect,
"I'll do you like I did your homeboy." Banh said that before he was in custody at
Camp Barrett, he had heard a rumor that Khalife was killed by two black people
from TRG – Laughter and Smoke. Detective
Pendleton testified that Banh told him Rabb said something about
nine-millimeter hollow point or hollow tip bullets.
When questioned
again in 2008, Banh said he did not hear Rabb's statements because he had
fallen asleep or was walking away, but another juvenile, Vu Nguyen, told him about
them later. At trial Banh acknowledged
telling Pendleton that Rabb threatened to kill him like he killed Khalife, but
said he was lying to get Rabb in trouble.
Vu Nguyen also
was in Camp Barrett in August 2002. In
2002, Vu told detectives that Rabb admitted to him that he had killed
Khalife. In April 2008, Vu was
interviewed by two detectives in state prison.
Vu confirmed knowing Rabb and remembering the incident where Rabb and
Bahn were arguing at Camp Barrett and Rabb said something to Bahn about Rabb
shooting someone. Vu also confirmed what
he previously told the detectives in 2002.
At trial, Vu
said he had made up the story he told detectives in 2002 and again in
2008. He had heard a rumor that Rabb was
involved in Khalife's murder and at trial said Rabb was referring to the rumor
rather than saying he had shot Khalife.
Vu said he and Banh were 15 to 20 feet away when the alleged statement
was made. Vu also stated he was mad at
Rabb for failing to cover for him after Vu acted as a lookout while Rabb got in
a fight at Camp Barrett.
Abdirizak Arab
was another Camp Barrett resident in 2002 present at the "hill time"
encounter. Arab testified that he was
having "a little argument" with Rabb and when Arab would not back
down from Rabb, Rabb responded by saying something about killing Khalife. Arab said others were around, but not right
next to him when the statement was made.
Other Witnesses
Duc Nguyen was a
childhood friend of Khalife and a family friend of Bethy. Duc met Rabb in juvenile hall in February
2001. Duc testified that he was fighting
Rabb when Rabb told him that he was going to kill Khalife. In February 2002, Duc told police that he had
seen Rabb riding in a silver Nissan about five days before the shooting. Duc said Rabb was asking where Khalife
lived.
On
cross-examination, Duc was impeached several times. He acknowledged that by the time he spoke to
police in 2002, he had heard rumors that TRG and two African-Americans were
involved in the shooting. He repeatedly
told detectives in 2002 that a lot of what he knew was based on rumors. Duc testified that he did not like Rabb
because Rabb had "banged on" Duc – "asked me where I'm from,
stuff like that" – prior to February 2002.
Duc also testified that he had seen Rabb in an SUV a few days before
Khalife was killed, but that the car did not stop and Rabb did not say
anything. He said he blamed Rabb for the
shooting based on his personal history with Rabb. Duc claimed that he exaggerated and lied
about certain things that Rabb said and/or did.
He also said he talked to police in 2002 hoping to get out of
custody.
Nam Nguyen
signed an agreement to cooperate with the prosecution and pled guilty to three
criminal charges prior to testifying.
Nam testified that, in May 2009, while he was in custody with Rabb at
the South Bay jail, Rabb asked him if he knew Bethy. Nam continued to testify that Rabb told him
that he shot Bethy and her boyfriend as well as another male when a robbery got
out of control. Rabb said he was with
another guy from his gang when he shot the three people. Nam also testified that Rabb said that Bethy
and a Mexican female were the only witnesses, and the Mexican had been taken
care of. Rabb told Nam he had given the
gun to the Mexican girl, but she could not be found so he only was facing car
theft charges because his fingerprints were found on the car.
Rabb
Rabb was
interviewed by police about the shootings twice in 2002, in February and
April. The second interview was
conducted in South Carolina, where Rabb had relocated. Rabb told police he had been in and/or drove
a Nissan Xterra he claimed Butler owned about 10 times. Detective Lynn Rydalch, who conducted the
interview, was aware of a rumor that Rabb was involved in the Midvale Drive
shooting. In subsequent interviews in
2004 and 2008, Rabb told a detective he had been in TRG since he was 15 and
went by the name Smoke.
In February
2010, while Rabb was an inmate at the San Diego Central jail, he mailed a
letter to Eduardo Maldonado, who also was an inmate at another San Diego jail,
which contained a message intended for Eduardo's brother, Christian. This letter, however, was intercepted by jail
personnel. In the letter, Rabb asked
Christian to testify that he witnessed Butler and Simms borrow the keys to the
Xterra and then return them later, saying they had done a drive-by
shooting. A document analyst confirmed
the letter was in Rabb's handwriting.
A search of
Rabb's room turned up a photo of Rabb displaying TRG hand signs as well as
three compact discs, some note paper, and a baseball cap that said TRG. A gang expert opined that Rabb was a TRG
member in 2002 and remained in the gang at the time of trial.
Rabb testified
in his own defense. He joined TRG when
he was 15, following some older friends; although he knew they occasionally got
into fights, he thought racing was their main activity. He took the nickname Smoke from a character
in a video game. Rabb became inactive
from TRG at the end of 2005 when his girlfriend got pregnant with their son.
Rabb met
Carolina M. through friends. He
acknowledged they had a sexual relationship and that he treated her
disrespectfully. They were never
boyfriend and girlfriend, although she had something of an obsession with
him. Rabb said he saw Carolina M. smoke
crystal meth 15 to 20 times. Rabb never
used drugs.
Rabb described
the incident where he participated in bashing Khalife's car's windows in the
summer of 2001. Rabb was riding in a car
with three TRG friends, Laughter, Sleepy, and Shiny, when Khalife threw a gang
sign at them. Rabb had never seen
Khalife before. The windows on Shiny's
car had been smashed three or four times, and Rabb decided to smash the rival's
windows in retaliation. Rabb, with two
others, got out and ran to the rival's car.
Rabb struck the rear passenger side window with a ratchet. He saw Bethy sitting in the car. Later, when he was questioned by police, Rabb
suggested Bethy could clear him in the shooting because she had seen him
before, during the window bashing. Rabb
testified that this one incident was his only encounter with Khalife.
Rabb did not
know Rico and did not know about people selling things to someone on Midvale
Drive.
Rabb admitted he
and Christian stole the silver Xterra off a street in North Park. Rabb said he gave the keys to friends who
wanted to drive the car and multiple people did. Rabb put gas in the car two or three
times. He denied having anything to do
with stealing the license plate from the white Xterra or knowing that the
plates were ever switched. Rabb refuted
participating in the burglary where the Daewoo gun was stolen and claimed that
he never tried to give Carolina M. any guns in the alley as she described. He testified that Butler never picked him up
in the SUV at the alley on the evening of the shootings.
Butler and Simms
were members of West Coast Crips, a black street gang. The last time Rabb saw the silver Xterra, he
had parked it on 44th Street. Later that
night, he was at home playing video games with Christian and Eduardo, and
possibly Demetrius Harrell, when Butler and Simms came to the door. They wanted to borrow the SUV. Christian gave them the keys and then left
with them. Rabb went back to playing
video games with Eduardo.
Christian
returned no more than an hour later and told Rabb what had happened. Christian then told Rabb's father the same
story, after which Mr. Rabb sent Christian home. Later, Simms came back to Rabb's house and
asked if he could stay the night there, but Rabb's father would not let
him. Rabb testified he did not know what
Butler and Simms were going to do when they borrowed the SUV, and he did not
see either of them with a gun.
In March 2002,
Rabb took a bus to South Carolina where his uncle lived "to get away from
all the rumors and things that had been happening to [him] since the rumors
came out." For example, Rabb and
his father had guns and knives pulled on them.
In February 2002, a rival gang member pulled alongside Rabb as he was
walking home from school. The rival
said, "You killed my homey Sub-zero.
Go to the alley. I'm going to
smoke you too." Rabb ran off in the
opposite direction.
When Rabb was in
Camp Barrett, a friend approached him and said some rival gang members were
claiming he killed one of their friends.
Rabb got angry "because that's a rumor you don't want
around." Rabb confronted a group
that included Banh, whom Rabb recognized from the streets. Rabb questioned Banh about the accusation
that Rabb had killed one of Banh's friends.
They had a heated argument in which Rabb denied having killed Khalife.
Rabb met Duc in
2001. Rabb "hit up" Duc and
they had a fist fight that Rabb won.
Later, they had another fight, also won by Rabb. Rabb recalled seeing Duc on the street in
early 2002 as Rabb was riding in the Xterra.
They made eye contact, but the SUV did not slow down, and Rabb did not
say anything to Duc.
Rabb met Nam in
jail in South Bay. Rabb asked Nam about
Bethy because he wanted Bethy to see his face so she would know he was not the
shooter at the Midvale Drive shootings.
Rabb denied telling Nam details of the case, or that he shot anyone, but
he had case reports in his cell, and his cellmate, Lon Chhay, was friends with
Nam.
Rabb explained
the letter he sent to Christian. The
story proposed by Rabb, partly true and partly false, distanced Christian from
Butler and Simms, so Rabb hoped it would get Christian to testify at trial. The true part of the story was Simms and Butler
coming to the house and borrowing the keys to the SUV. The false part was that they returned later,
said they had done a shooting, and asked Rabb, Christian, and Eduardo to get
rid of the car and Rabb to get rid of the gun.
Rabb said he sent another letter a few days later to Christian,
instructing him to forget the story Rabb proposed and just tell the truth.
Rabb had
suffered five juvenile adjudications for burglary, four before January 2002 and
one after, and one adult conviction for burglary in 2005. He acknowledged he lied when questioned by
police about the SUV, TRG, and the window bashing incident.
Speaks, a
teenage friend of the Rabb family who lived with them for two or three years
beginning in 2001, hung out in the alley with Rabb, Carolina M., and the other
kids. Speaks never saw the silver
Xterra. She also never saw Rabb try to
hand Carolina M. a gun. In addition,
Speaks testified that she never saw Rabb do anything violent. Speaks said Carolina M. "lied about a
lot of stuff."
A defense
investigator interviewed Carolina M. on May 2, 2009, and asked her about
methamphetamine use around the time of the events she reported about the silver
SUV appearing at the alley. Carolina M.
told him "that she was using methamphetamine at the time and that her
recollection of events about that time were skewed as a result of
that." She said she was
"really strung out" back then.
She also said she could not be sure whether or not the gun she saw was a
BB gun.
Another defense
investigator interviewed Carolina M. on February 2, 2010. At that time, she said the only thing she was
certain was that she saw Rabb ride in the silver Xterra, and she said was not
sure if the other events she reported happened on that same day – "her
times could have been confused."
Dr. Francisco
Gomez, a forensic neuropsychologist, testified that he reviewed reports of two
psychological evaluations of Carolina M. from 2002, when she was in juvenile
custody. Dr. Gomez opined that Carolina
M. not only abused methamphetamine, but had a dependence on it during that
time.
Dr. Gomez
testified that daily use of methamphetamine "is already to a point where
it starts to affect your mental health, your neurological
functioning." After about six
months of daily use, "it ends up affecting your memory. . . . [Y]our memories aren't being stored correctly
. . . so the memories that you have during that point are not stored
correctly." Memories may be "jumbled
up," not stored in a typical order, or perhaps filled in by what others
say.
DISCUSSION
I
FOR PREJUDICIAL DELAY
The murders in
this case occurred on January 23, 2002.
Rabb, however, was charged with two counts of murder and one count of
attempted murder on September 17, 2008 ‑ almost seven years later. He contends the trial court violated his
state and federal rights to due process and a fair trial by denying his motion
to dismiss the charges because of this delay.
"Delay
in prosecution that occurs before the accused is arrested or the complaint is
filed may constitute a denial of the right
to a fair trial and to due process of law under the state and federal
Constitutions. A defendant seeking to
dismiss a charge on this ground must demonstrate prejudice arising from the
delay. The prosecution may offer
justification for the delay, and the court considering a motion to dismiss
balances the harm to the defendant against the justification for the delay. [Citations.]" (People
v. Catlin (2001) 26 Cal.4th 81, 107; see People v. Cowan (2010) 50 Cal.4th 401, 430; People v. Nelson (2008) 43 Cal.4th 1242, 1250.) " 'In the balancing process, the
defendant has the initial burden of showing some prejudice before the
prosecution is required to offer any reason for the delay [citations]. The showing of prejudice requires some
evidence and cannot be presumed.
[Citations.]' " (
(italics omitted), disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543, fn. 5.) The court need not engage in the balancing
process if the defendant fails to meet his or her initial burden of showing
actual prejudice since there is nothing against which to weigh such
justification. (People v. Mirenda (2009) 174 Cal.App.4th 1313, 1327-1328.)
The
prejudice protected by a defendant's due process rights are "unjustified
delays that weaken the defense through the dimming of memories, the death or
disappearance of witnesses, and the loss or destruction of material physical
evidence." (People v. Martinez (2000) 22 Cal.4th 750, 767, citing
783, 790.) A defendant must establish
prejudice by means of competent evidence rather than "speculation, surmise
or conjecture." (
Cal.App.3d 937, 947 (Shleffar).)
Here,
Rabb challenges the trial court's finding that the loss of four types of
evidence due to the delay in filing the charges did not prejudice him. The lost evidence includes the disappearance
of Simms, the improvement of Carolina M.'s credibility as she transformed from
drug abusing teenager to sober young adult, Speaks's failed memory, and Rabb's
losing the opportunity to testify in his defense as a 16 year old instead of an
adult with a felony burglary conviction.
We conclude substantial evidence supports the trial court's finding that
Rabb failed to prove prejudice, and the trial court therefore properly denied
the motion as to those items. (See
846, 874.)
Rabb
claims he was prejudiced by the disappearance of Simms. During trial, he argued that Simms and Butler
were responsible for the shootings.
Carolina M. testified that Simms was in the alley with her when Rabb and
Maldonado got in the SUV prior to the murders.
Rabb offered evidence that Simms matched the general description of the
shooter and his fingerprint was on the stolen license plate that was put on the
silver Xterra. Despite the evidence Rabb
offered at trial to prove Simms was involved in the shootings, Rabb still
maintains he was prejudiced because the police failed to take Simms's palm
print and compare it to the palm prints found on Khalife's car. However, in his opening brief, Rabb admits
Simms's palm print is "potentially exonerating evidence." In other words, Rabb is merely speculating
that Simms's palm print could be exonerating.
This argument is nothing more than conjecture, and we agree with the
trial court that the loss of this "evidence" did not prejudice
Rabb. (See Shleffar, supra, 178
Cal.App.3d at p. 947.)
Rabb
also contends he was prejudiced by the delay because Carolina M., a key
prosecution witness, testified as a "young woman over three years into her
admirable recovery" from drug addiction and not as the "meth
addict" she was at the time of the shootings. Rabb thus insists the delay allowed Carolina
M. to transform into a much more credible witness. Rabb's argument fails to appreciate Carolina
M.'s actual testimony during trial.
Carolina M. was impeached by inconsistencies in her testimony and by
testimony of other witnesses. During
cross-examination, Rabb's attorney brought ample attention to Carolina M.'s
past drug abuse. Further, Rabb offered
an expert witness who testified regarding the effect of methamphetamine abuse
on the perception and memory of a drug addict.
Rabb was not prejudiced because Carolina M. testified at trial as a
recovering drug addict who was sober.
Rabb
next argues that Speaks's failed memory prejudiced him. At trial, Speaks testified primarily to
impeach Carolina M.'s account of the evening of the shootings. She stated she was present in the alley on
the night of the shootings and never saw Rabb attempt to give Carolina M. a
gun. Nevertheless, Rabb claims her
failed memory made her less credible because Speaks could not remember Rabb
moving to South Carolina a short time after the shootings. We agree with the People that this
impeachment is insignificant and Rabb never established if Speaks could not
remember Rabb moving to South Carolina or if she never realized he had
left. There was no prejudice based on
Speaks's "faulty memory."
Finally,
Rabb asserts he was prejudiced by the fact that the delay required him to
testify as "a less-sympathetic adult with a felony burglary
conviction" and "not the youthful Rabb who allegedly did the
crimes." We are not persuaded. The delay did not force Rabb to commit
burglary. He did so on his own
volition. Indeed, it was entirely within
Rabb's power, even with the delay, to testify as a youthful 24 year old without
a felony burglary conviction. Because of
his own actions, he did not do so. He
cannot now claim he was prejudiced by his own misdeeds and poor choices even if
there was a delay between the crimes being committed and the prosecution's
charging of Rabb, and based on this delay, Rabb was almost eight years older
when he testified.
For
all the above reasons, we conclude substantial
evidence supports the trial court's finding that Rabb did not carry his burden
in proving he was prejudiced by the delay.
II
Rabb
contends the prosecutor misstated the law during
reasonable doubt standard and implying the burden of proof fell on Rabb. The People argue the alleged misstatement was
merely hyperbole and, given the jury instructions, there is no likelihood the
jury would have misunderstood the prosecutor's argument as an erroneous
definition of the burden of proof.
A. Closing Arguments
During
the prosecutor's closing argument, she reminded the jury that Rabb had the
opportunity, after listening to all of the prosecution's witnesses, to prepare
his testimony, lie in his defense, and convince others to lie for him. She discussed Rabb's deceit, flight, and
admissions. She also reviewed the
evidence that she believed proved Rabb committed the charged crimes. Finally, the prosecutor reminded the jury
that their interpretation of the evidence controlled over anything she said
during her closing argument. Although
she mentioned reasonable doubt a couple times in her closing, she did not
attempt to explain or define it for the jury.
In
his closing argument, Rabb's counsel claimed Butler and Simms were the actual
murderers. He also focused on the
credibility of Carolina M., asserting she was not to be trusted because she was
a woman scorned and a recovering drug addict.
He also challenged the bias and credibility of the various prosecution
witnesses and emphasized there was no physical evidence that Rabb shot
anyone. Toward the end of his closing,
Rabb's attorney discussed the concept of reasonable doubt:
"That jury instruction on
reasonable doubt, 224 – I'm sorry – 220, proof beyond a reasonable doubt is
that proof that leaves you with an abiding conviction that the charge is
true. Based on this rumor, bias, easy
way out, hearsay, and Carolina [M.]. If
you convict him, every time you drive by this courthouse, next year, five years
from now, 20 years from now, you have to be confident that you did the right
thing. That's what an abiding conviction
is all about. And ladies and gentlemen,
just with everything that I've shown you here, there's no reasonable
[sic]. It's not beyond a reasonable
doubt."
The
prosecutor's rebuttal argument attempted to address Rabb's counsel's claim that
the prosecution's case was undermined by bias, unsubstantiated rumor,
unbelievable witnesses, and a lack of evidence linking Rabb to the shootings. The prosecutor ended by discussing reasonable
doubt:
"Beyond a reasonable doubt
standard is not Mount Everest. It
happens every day in and out of these courts.
Beyond a reasonable doubt is not a scare tactic. Beyond a reasonable doubt is that thing that
you come to after you examine all of the evidence. And for the defendant to be not guilty in
this case, you have to believe every word that came out of his mouth on the
stand. You have to believe every word
that came out of his mouth, and you can't do that. [Defense objection overruled.] -- good reasons to lie then or now, you have
to believe every word that came out of his mouth. The defendant's conduct in this case was
reprehensible in the commission of these murders. He committed them. He is guilty beyond a reasonable doubt. And when he got caught, he did everything he
could to get out of it. His actions do
not speak the actions of an innocent man."
B. The Law
"Closing
argument in a criminal trial is nothing more than a request, albeit usually
lengthy and presented in narrative form, to believe each party's
interpretation, proved or logically inferred from the evidence, of the events
that led to the trial. It is not
misconduct for a party to make explicit what is implicit in every closing
argument." (People v. Huggins (2006) 38 Cal.4th 175, 207.)
"
'[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.'
[Citation.] . . . [¶] . . . [¶] . . .
A prosecutor is held to a standard higher than that imposed on other
attorneys because of the unique function he or she performs in representing the
interests, and in exercising the sovereign power, of the state.' [Citation.]" (People
v. Hill (1998) 17 Cal.4th 800, 819-820 (Hill),
overruled on another ground in Price v.
Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
"The
standards under which we evaluate prosecutorial misconduct[
may be summarized as follows[:] A
prosecutor's conduct violates the Fourteenth Amendment to the federal
Constitution when it infects the trial with such unfairness as to make the
conviction a denial of due process.
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 trial court or the jury.
Furthermore, . . . when the claim focuses upon comments made by the
prosecutor before the jury, the question is whether there is a reasonable
likelihood that the jury construed or applied any of the complained-of remarks
in an objectionable fashion." (
44.)
It
is improper for the prosecutor to misstate the law, and even an innocent
misstatement of law can constitute error.
(Hill, supra, 17 Cal.4th at pp. 822, 829-832.)
C. Analysis
"[C]ourts
must avoid defining reasonable doubt so as to lead the jury to convict on a
lesser showing than due process requires."
(Victor v. Nebraska (1994) 511
U.S. 1, 22.) The statutory language of the reasonable doubt standard "has
with near, if not complete, universality been accepted as the best definition
of the concept of proof beyond a reasonable doubt. Well intentioned efforts to 'clarify' and
'explain' these criteria have had the result of creating confusion and
uncertainty, and have repeatedly been struck down by the courts of review of
this state." (People v. Garcia (1975) 54 Cal.App.3d 61, 63.)
Here,
the prosecutor informed the jury:
"And for the defendant to be not guilty in this case, you have to
believe every word that came out of his mouth on the stand. You have to believe every word that came out
of his mouth, and you can't do that."
The People claim that these comments are mere hyperbole. We disagree.
The
prosecutor's comments are not simple exaggerations intended to emphasize a
particular point (here, Rabb's lack of credibility). Instead, they suffer from two main
problems. First, the prosecutor's comments
could reasonably be interpreted as suggesting to the jury that she did not have
the burden of proving every element of the crimes charged beyond a reasonable
doubt. (See People v. Marshall (1996) 13 Cal.4th 799, 831.) Instead, she implies that Rabb had the burden
to prove reasonable doubt, which also leads to a second concern. The prosecutor is mistaken as to the law to
the extent she is informing the jury that there must be some affirmative
evidence demonstrating a reasonable doubt (here, Rabb's testimony) when the
jury may simply not be persuaded by the prosecution's evidence. (Hill,
supra, 17 Cal.4th at p. 831.)
We
are no less troubled by the prosecutor's statements even if we consider the
People's argument that the comments were merely a "sentence during
rebuttal argument in light of lengthy arguments by both counsel." The context of the prosecutor's comments
actually undermines the People's argument.
The last thing the jury heard in this trial was the prosecutor's
misstatement regarding reasonable doubt.
Moreover, Rabb's counsel immediately objected to the prosecutor's
comments on the grounds that the prosecutor had misstated the law, but the
court overruled the objection. Thus, the
jury retired to the jury room believing that the prosecutor's misstatement of
the law was in fact correct, as approved by the court. In other words, the jurors were left with the
court endorsed belief that they could not find reasonable doubt unless they
believed all of Rabb's testimony.
Also,
the jury instructions on reasonable doubt did not cure the problems stemming
from the prosecutor's rebuttal argument.
"When argument runs counter to instructions given a jury, we will
ordinarily conclude that the jury followed the latter and disregarded the
former, for '[w]e presume that jurors treat the court's instructions as a
statement of the law by a judge, and the prosecutor's comments as words spoken
by an advocate in an attempt to persuade.'
[Citation.]" (
717.) However, here, Rabb's argument did
not contradict the jury instruction on reasonable doubt, but instead offered an
incorrect explanation regarding how to apply reasonable doubt in this
case. Further, the court overruled
Rabb's counsel's objection to the misstatement, thus sanctioning the
misstatement and giving it the imprimatur of a correct statement of the
law. The jury instructions could not
cure the prosecution's dilution of the proof beyond a reasonable doubt
standard. (Cf. People v. Johnson (2004) 119 Cal.App.4th 976, 985-986.)
D. Effect of Prosecutorial
Error
Having
concluded that the prosecutor's statements about reasonable doubt during
rebuttal argument were improper, we next must determine whether reversal is
warranted. A prosecutor's remarks
"can ' "so infect[ ] the trial with unfairness as to make the
resulting conviction a denial of due process." ' [Citations.]" (People
v. Frye (1998) 18 Cal.4th 894, 969; disapproved on other grounds in
421, fn. 22.) In such cases, the
prosecutorial error amounts to federal constitutional error and reversal is
required unless we conclude the prosecutorial error was harmless beyond a
reasonable doubt. (People v. Estrada (1998) 63 Cal.App.4th 1090, 1106-1107, citing
18, 24.) If the prosecutor's remarks did
not rise to that level, we will not reverse unless we conclude it is reasonably
probable that a result more favorable to the defendant would have been reached
in the absence of the prosecutorial error.
(People v. Barnett (1998) 17
Cal.4th 1044, 1133, citing People v.
Watson (1956) 46 Cal.2d 818, 836.)
Under either standard, we must reverse the judgment in this matter.
Not
atypical in criminal trials, the outcome at trial hinged largely on the
credibility of the witnesses. Many of
these witnesses, however, presented substantial obstacles that could have
influenced whether a jury found them credible.
For example, Banh was a member of a rival gang of Rabb's gang. Banh and Vu testified at trial inconsistently
with previous interviews with police, and both claimed that they had lied
previously to the police and were motivated by their dislike of Rabb. Carolina M., one of the prosecution's key
witnesses, was a recovering drug addict who Rabb spurned. She also was impeached several times at trial
from her own testimony as well as the testimony of other witnesses. Rabb actually admitted on the stand that he
had previously lied to the police and asked another witness to lie for him
prior to trial.
Against
this backdrop, the prosecutor told the jury that it could not find reasonable
doubt unless it believed every word of Rabb's testimony. The court overruled Rabb's objection to the
prosecutor's statement. Therefore, the
jury reasonably could have concluded that it had to convict Rabb of all charges
except if it believed all of Rabb's testimony.
As such, in a case like this, when there exists several credibility
challenged witnesses on both sides, especially the defendant who testified in
his defense and admitted to having lied, we cannot conclude the prosecutorial
error was harmless beyond a reasonable doubt.
Based
on the record before us, we also conclude it is reasonably probable that a
result more favorable to Rabb would have been reached in the absence of the
prosecutorial error. Our high court has
emphasized "that a 'probability' in this context does not mean more likely
than not, but merely a reasonable chance, more than an abstract possibility. ([Watson,
supra, 46 Cal.2d] at p. 837; cf.
U.S. 668, 693-694, 697, 698 ['reasonable probability' does not mean 'more
likely than not,' but merely 'probability sufficient to undermine confidence in
the outcome'].)" (
(1994) 8 Cal.4th 704, 715; italics omitted.)
A more favorable outcome under this analysis includes a hung jury. (Cf. People
v. Soojian (2010) 190 Cal.App.4th 491, 519-522.)
Here,
the jury was told that it could not find reasonable doubt unless it believed
everything Rabb said at trial. This
statement, approved by the trial court, creates the very reasonable chance that
the jury would not have been able to convict Rabb absent the prosecutorial
error. At best, the physical evidence
directly linking Rabb to the shootings was weak. Some of the prosecution's witnesses were
impeached and testified inconsistently with their previous interviews with
police. Rabb admitted he had lied
previously. Except for the law
enforcement and expert witnesses, the jury had good reason to question the
veracity of almost every other witness at trial. As such, the prosecutor's error, approved by
the trial court, sufficiently undermines our confidence in the outcome of this
matter. (See College Hospital, Inc. v. Superior Court, supra, 8 Cal.4th at p. 715.)
DISPOSITION
The judgment is reversed.
HUFFMAN, Acting P. J.
I CONCUR:
O'ROURKE, J.
McINTYRE, J., Dissenting.
I
respectfully disagree with the majority's conclusion that the prosecutor's
comment at the end of her rebuttal argument meets the standard of rendering the
trial fundamentally unfair so as to require reversal of the judgment. (People
v. Hill (1998) 17 Cal.4th 800, 818, overruled on another ground in
Cal.4th 1046, 1069, fn. 13.)
The
majority's conclusion is based on the premise that the prosecutor's comment
that "for the defendant to be not guilty in this case, you have to believe
every word that came out of his mouth" constituted a misstatement of law. (Majority Opinion at p. 24.) I submit that the trial court overruled
defense counsel's misstatement of law objection because it concluded, as I do,
that the prosecutor's comment was not a statement of law, but rather the
argument of an advocate attempting to persuade the jury that Rabb's testimony
was not credible. (People v. Sanchez (1995) 12 Cal.4th 1, 70, disapproved on another
point in People v. Doolin (2009) 45
Cal.4th 390, 421 ["we presume the jury treated the court's instructions as
statements of law, and the prosecutor's comments as words spoken by an advocate
in an attempt to persuade"].) What
I believe the prosecutor meant to convey was that, consistent with CALCRIM No.
302, after evaluating all the evidence, the jury should conclude that Rabb's
testimony was not convincing.
The
touchstone for a claim of prosecutorial error is whether there is a reasonable
likelihood the jury construed or applied the remarks in an improper
manner. (People v. Ayala (2000) 23 Cal.4th 225, 284.) I submit that, examining the prosecutor's
comment in the context of the whole argument and the instructions to the jury
given by the trial court (People v. Lucas
(1995) 12 Cal.4th 415, 475), no reasonable juror would have retired to the
deliberation room under the mistaken belief that the juror had to convict Rabb
of all charges unless he or she believed "every word" Rabb said. Nor do I agree that a reasonable juror would
interpret the prosecutor's comment as suggesting to the jury that the People
did not have the burden of proving every element of the crimes charged beyond a
reasonable doubt. (Majority Opinion at
pp. 24–25.) The trial court properly
instructed the jury on the concept of reasonable doubt, including the
requirement that anytime the "the People must prove something . . . they
must prove it beyond a reasonable doubt."
(CALCRIM Nos. 103 and 220.) The
jury was also instructed that it must follow the court's instructions if
counsel's comments on the law conflicted with the instructions. (CALCRIM No. 200.) For these reasons, I dissent.
McINTYRE, J.
name="_ftn1" title="">[1] Statutory references
are to the Penal Code unless otherwise specified.
name="_ftn2" title="">[2] At trial, Carolina M.
testified that she was not on methamphetamine while she was in juvenile hall in
2002, but only became "strung out" later when she was 16 or 17 years
old and living in El Cajon.
