P. v. Cole
Filed 3/21/13 P. v. Cole CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
DONNIE RAY COLE et al.,
Defendants
and Appellants.
E055228
(Super.Ct.No.
BAF1100297)
OPINION
APPEAL
from the Superior Court
of
County. Edward D.
Webster, Judge. Affirmed.
Jean
Ballentine, under appointment by the Court of Appeal, for Defendant and
Appellant Donnie Ray Cole.
Richard
de la Sota, under appointment by the Court of Appeal, for Defendant and
Appellant Tony Eugene Williams.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, William M. Wood and
Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
This
case involves two individuals, defendants and appellants Donnie Ray Cole and
Tony Eugene Williams (collectively “defendantsâ€). A jury found Cole guilty of two counts of
(Pen. Code, § 211.)
name="_ftnref1" title="">[1] Cole admitted suffering three prior
convictions for which he served prison terms.
(§ 667.5, subd. (b).) The trial
court sentenced Cole to prison for a term of nine years. The jury found Williams guilty of two counts
of robbery (§ 211) and one count of being a felon in possession of a firearm (§
12021, subd. (a)(1)). In regard to both
of Williams’s robbery convictions, the jury found true the enhancement that
Williams personally used a firearm during the commission of the felonies. (§ 12022.53, subd. (b).) Williams admitted suffering three prior
serious felony convictions and three prior strike convictions (§ 667, subds.
(a), (c) & (e)(2)(A).) The trial
court sentenced Williams to prison for a determinate term of 50 years and an
indeterminate term of 50 years to life.
Cole
raises four issues on appeal. First,
Cole asserts the trial court erred by permitting a law enforcement officer to
testify that, in his opinion, Cole was guilty.
Second, Cole contends the prosecutor committed misconduct by misstating
the reasonable doubt standard during closing
argument. Third, Cole claims his
trial counsel was ineffective for failing to object to the prosecutor’s alleged
misconduct during closing argument.
Fourth, Cole asserts the cumulative effect of the foregoing errors
resulted in a denial of his right to a fair trial.
Williams
raises two issues on appeal. First,
Williams asserts the prosecutor committed misconduct by misstating the
reasonable doubt standard during closing argument. Second, Williams contends his trial counsel
was ineffective for failing to object to the prosecutor’s alleged
On
May 15, 2011, at approximately 2:30 a.m., victim1 arrived at Casino
Morongo. Victim1 parked her car in a
casino parking lot. After victim1
stopped her car, a man appeared at the driver’s door of the car. The man opened the driver’s door, but blocked
victim1’s ability to exit the car. The
man yelled at victim1, telling her to give him her purse. Victim1 asked the man not to take her
purse. At that point, the man “pulled
out a gun and he told [victim1] that if [she] didn’t hand over [her] purse he would
kill [her].†Victim1 physically
struggled with the man over her purse, which resulted in victim1 exiting the
car. Eventually, victim1 realized the
man might shoot her, so she let go of the purse and the man “took off†with
it. Victim1’s purse contained $380, her
identification, her credit card, and the pink slips for her cars.
The
man ran to a white van and entered the van.
Victim1 ran into the casino and yelled that she had been robbed. Casino security guards called the sheriff. Victim1 described the robber as a Black man,
with a medium build, whose hair was braided.
Victim1 estimated the robber was “in his late 30s.†Victim1 was unable to identify anyone at
trial as the robber.
Also
on May 15, 2011, at approximately 2:30 a.m., victim2 exited Casino Morongo and
went to the parking lot to retrieve $30 from her car. Victim2 took the money from the trunk of her
car and closed the trunk, then, as she turned around she saw a man pointing a
gun at her. The man demanded victim2’s
money, so she gave it to him. Victim2
began walking away. The man told victim2
that if she turned around he would shoot her, so she continued walking. Victim2 went inside the casino and told a
security guard she was robbed.
Victim2
described the robber as a Black man with a medium build. Victim2 estimated the robber was in his
“mid-20s.†Victim2 was unable to
identify anyone at trial as the robber.
Riverside
County Sheriff’s Investigator Bonaime investigated the two robberies. Bonaime reviewed the surveillance photographs
and videos from the casino in order to determine the van’s license plate
number. The surveillance video was
played for the jury. The video reflected
a white van with a green fender entering the casino’s parking structure on May
14, 2011, at approximately 6:14 p.m. The
driver parked the van at 6:16 p.m.; two men exited the van and walked into the
casino. The two men were Cole and
Williams.
The
surveillance footage reflected defendants exited the casino together at
approximately 1:45 a.m. on May 15.
Defendants returned to the van.
At 1:49 a.m., the driver backed the van out of its parking place and
drove through the parking structure.
Bonaime was able to read the van’s license plate number due to the angle
of the van while it moved through the structure. In court, the image of the license plate was
too blurry to read. However, Bonaime
originally viewed the video on the casino’s equipment, which had better image
quality than the equipment in the trial court.
Bonaime read the van’s license plate number from his report.
At
1:51 a.m., the driver parked the van in the parking structure. At 2:05 a.m. the driver moved the van out of
the parking place, exited the parking structure, and went to a second parking
lot at the casino. The van stopped in a
parking stall. At 2:22 a.m., a man can
be seen moving from the area where the van was located and walking toward the
parking structure where the van had been originally parked. The man was wearing the same shoes Williams
had been wearing when he exited the casino earlier that night.
At
2:24 a.m., the man pulled a gun from his waistband, and then disappeared from
the camera’s coverage area. At 2:25
a.m., the man appeared on the surveillance footage again. The man exited the parking structure and
walked toward the van. At the same time,
a car entered the parking lot and parked in a parking stall. A man came “around the front of the van†and
went to the driver’s door of the car that just parked. At 2:27 a.m., a person can be seen running
across the parking lot, while victim1 can be seen running toward the
casino. At that point, the headlights of
the white van turn on, and the driver moves the van toward the person running
through the parking lot. The van exited
the casino property and drove onto Interstate 10, toward Moreno Valley.
Bonaime
found the registered owner of the van was Irene Ward; she resided in Moreno
Valley. Bonaime went to Ward’s home and
saw the white van with the green fender and license plate number matching the
van in the surveillance video. Bonaime
went to Ward’s apartment. Cole was
inside the apartment. Bonaime searched
the apartment. Bonaime found shoes and a
shirt matching those Cole was wearing when exiting the casino.
Cole
and Ward were romantically involved, and Cole lived with Ward. Williams’s wife was Ward’s friend; defendants
met and became friends. Defendants
“look[ed] for jobs†together. Ward lent
her van to Cole on May 14 at approximately 6:00 p.m. Cole returned home the following morning at
approximately 8:00. When Cole returned
with the van, he gave Ward $120 for groceries.
Cole did not have a regular job, but sometimes did “odd jobs here and
there.â€
A
couple of days after searching Cole’s apartment, Bonaime searched Williams’s
apartment. Bonaime found shoes matching
the shoes Williams wore at the casino.
A. CLOSING ARGUMENT
1. PROCEDURAL
HISTORY
a) Voir Dire
During
voir dire, the prosecutor asked the jury to imagine a parent whose child asks
for piece of cake and the parent tells the child to wait for the cake until
after dinner. The parent later enters
the kitchen to find a piece of the cake missing, crumbs leading from the
kitchen to the child’s bedroom, and frosting covering the child’s face. The prosecutor asked jurors if they could
conclude the child ate the piece of cake.
A couple of prospective jurors said they would want more evidence. The prosecutor explained that sometimes there
is not direct evidence presented at a trial, for example, a murder victim never
testifies but juries convict people of murder.
The
prosecutor asked, “Theoretically, would anybody have a problem convicting
someone of a crime, assuming that they thought that they were guilty beyond a
reasonable doubt, if the victim flat out did not testify?†Prospective Juror No. 2 raised his/her
hand. The prosecutor asked, “Assuming
you felt strongly you had an abiding conviction that there was guilt, even if
there was no victim, you could probably convict; is that fair?†Prospective Juror No. 2 responded, “It’s
possible.â€
b) Closing Argument
During
closing argument, the prosecutor made the following statements: “What are the chances that all of these
factors are lining up to these two guys, and yet, it’s not them? Astronomical.
Is it possible? Is it physically
possible in the universe? Yes, it is
absolutely possible, but that’s not the question, which leads me into my final
section, reasonable doubt.
“The
question is not whether it’s possible.
If someone’s voting not guilty because it’s possible, that is
wrong. That is against the law. The question is, what’s reasonable? What’s the reasonable explanation for the
evidence? Reasonable doubt is kind of
a—it’s a topic that gets more confusing the more people talk about it. The law says it’s an abiding conviction that
the charge is true. So what I like to do
is I like to talk about what reasonable doubt is not, because I think that
makes it a little bit easier.
“First
of all, it’s not beyond all possible doubt, like I just said. The law tells you there are an infinite
number of possibilities, but that’s not the question. The question is, what is a reasonable
possibility? The little kid with cake on
his face—we talked about him during jury selection. There are an infinite number of possibilities
to explain that situation I gave you last week.
Maybe he tripped and fell face first into the cake. Maybe someone broke [in], took the cake, and
smeared it on his face. We [can] think
up any number of things. Do any of those
make sense? No. What makes sense is that he ate the cake and
he got busted.
“Same
thing in this case. There are all kinds
of possibilities, but what makes sense?
Given the evidence that we have, what makes sense? It was the defendants who committed this
robbery. It was Mr. Cole who was driving
the van. Mr. Williams had the gun. That is what makes sense in this case.
“Sometimes
we hear this: Well, we knew he was
guilty but we wanted more evidence.
Everyone always wants more evidence.
I’m sure I want more evidence. I’m
sure the defense attorneys want more evidence.
Everyone wants more evidence.
That’s not the question. Just
like there’s always another possible explanation, there’s always some other
thing you might want. The question is,
the evidence that we actually have, is it enough to convict? That answer is yes. Yes, it is.
The only reasonable explanation for this evidence is that these two are guilty.â€
c) Juror Question
After
closing arguments were finished, and after the court gave instructions to the jury,
but before the jury was sworn, Juror No. 12 submitted questions that the trial
court addressed. The following dialogue
occurred:
“The
Court: [Juror No. 12], your question,
‘Is the kid with the cake a good example of proof beyond a reasonable doubt?’ Remember that what the attorneys say is
argument. It is not evidence. You have the evidence and you have the law. It’s up to you to figure it out. If you have questions that I can answer, I
will do so. The area of reasonable doubt
is one that judges are specifically told not to get into. The problem is that when you start talking
about reasonable things, you start using words that are just like reasonable
and we really don’t add much to it. So
if you ask me anything more about reasonable doubt, all I say is, ‘You have the
instruction.’ If you have a specific
question, it’s up to you, but I will make no comment about any further examples
given by counsel. Fair enough?
“[Juror
No. 12]: Yeah.
“The
Court: Second is, ‘Does the law require
us to include or exclude reasonable explanations not based o[n] the
evidence?’ The case is to be decided on
the evidence and the law that’s given to you by the Court. In fact, that’s what your oath is. So again, you have to take that for what it’s
worth, and you have the other jurors to talk [with] as to what reasonable
inferences are and what are not reasonable inferences, but again, that’s
typically a jury task.
“[Juror
No. 12]: So we get to decide what to
include and exclude?
“The
Court: Well, you are told what the
evidence is. You are told about making
reasonable inferences from the evidence.
Again, you shouldn’t look at this process as being an alien enterprise. We’re trying to have you go through a
common-sense process that, essentially, is consistent with your experiences in
life. Does that help?
“[Juror
No. 12]: Yeah, thank you.â€
2. ANALYSIS
a) Contentions
Cole
asserts the prosecutor committed misconduct by telling the jury it could reach
a verdict based on a finding that Cole’s alleged criminal conduct was a
reasonable possibility. Williams
contends the prosecutor committed misconduct by “conflat[ing] the concepts of
circumstantial evidence and proof beyond a reasonable doubt.†Williams faults the prosecutor for arguing
that the jury could find Williams guilty “based upon what made sense, or what
the most reasonable explanation of the evidence was, rather than on proof
beyond a reasonable doubt.†The People
contend defendants forfeited the prosecutorial misconduct issue for appeal by
failing to object at the trial court. We
agree defendants forfeited this issue for appeal. In examining the merits, we conclude the
prosecutor did not commit misconduct.
b) Forfeiture
“[A]
claim of prosecutorial misconduct is not preserved for appeal if defendant
fails to object and seek an admonition if an objection and jury admonition
would have cured the injury.
[Citation.]†(
840.) The record reflects defendant did
not object to the reasonable doubt statements made by the prosecutor. Further, the record shows that, during trial,
the trial court sustained some of defense counsel’s objections. Thus, it appears the trial court gave defense
counsel a positive response to prior objections. As a result, there is nothing indicating that
an objection would have been fruitless.
Further, there is nothing indicating an admonition would not have cured
the problem, especially in light of the juror’s question regarding reasonable
doubt—an admonition likely would have cured any perceived ills because at least
one juror was seeking more information.
In
sum, defendants should not be raising this claim of prosecutorial misconduct
for the first time on appeal. The time
to raise it was during closing arguments, and the place to raise it was the
trial court. As a result, we conclude
defendants have forfeited this issue for appeal. Nevertheless, we will address the merits of
defendants’ contention because it is easily resolved.
c) Merits
“It
is misconduct for a prosecutor to misstate the law during argument. [Citation.]
This is particularly so when misstatement attempts ‘to absolve the
prosecution from its prima facie obligation to overcome reasonable doubt on all
elements. [Citation.]’ [Citation.]â€
(People v. Otero (2012) 210
Cal.App.4th 865, 870-871.) “‘When, as
here, the point focuses on 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.’ [Citation.]â€
(People v. Thomas (2012) 53
Cal.4th 771, 797.)
Section
1096 defines reasonable doubt as follows:
“‘It is not a mere possible doubt; because everything relating to human
affairs is open to some possible or imaginary doubt. It is that state of the case, which, after
the entire comparison and consideration of all the evidence, leaves the minds
of jurors in that condition that they cannot say they feel an abiding
conviction of the truth of the charge.’â€
No further information about the definition of reasonable doubt, other
than that in section 1096, needs to be given to a jury. (§ 1096a.)
Both
defendants find it troublesome that the prosecutor said: “The question is, what is a reasonable
possibility?†It appears the prosecutor
was trying to explain to the jurors that the conviction could not rest on any
speculative possibility, but additionally that the charge also did not need to
be proven beyond all possibilities. The
prosecutor was not eloquent in making this point; however, it does not appear
that the prosecutor misstated the law.
Rather, the prosecutor talked and talked, trying to explain to the jury
“[W]hat’s reasonable?†In doing so, the
prosecutor seems to have fallen into a trap that he himself recognized, which
is, “[r]easonable doubt is kind of a—it’s a topic that gets more confusing the
more people talk about it.â€
Unfortunately, the prosecutor did not heed his own warning and continued
talking. The prosecutor’s presentation
was confusing. The prosecutor said he
was going to tell the jury, “what reasonable doubt is not,†because that is an
easier way to explain the concept.
However, the prosecutor then launched into explaining what reasonable
doubt is not while at the same time attempting to discuss the true meaning of
reasonable doubt. The prosecutor’s
presentation was messy, but when examined it does not contain a misstatement of
the law.
When
the prosecutor’s statements are considered as a whole, they reflect a proper
representation of the law—it is simply a matter of sorting through the
statements and considering them holistically.
For example, the prosecutor told the jury, “The law says it’s an abiding
conviction that the charge is true.â€
This is a correct statement. The
prosecutor also explained, “[I]t’s not beyond all possible doubt . . . .†This is also a correct statement. However, the prosecutor continued speaking
and began asking questions such as, “There are all kinds of possibilities, but
what makes sense?†If considered in
isolation, this question could appear problematic, but it can be inferred from
the overall context that the prosecutor understood the law of reasonable doubt
and meant, “what makes sense and leaves you with an abiding conviction?†Again,
the presentation was messy, but it does not appear to contain a misstatement of
the law. Nevertheless, for the sake of
thoroughness, because the prosecutor’s closing argument could be considered
confusing, we will address the issue of prejudice.
d) Harmless Error
“‘A
defendant’s conviction will not be reversed for prosecutorial misconduct’ that
violates state law . . . ‘unless it is reasonably probable that a result more
favorable to the defendant would have been reached without the
misconduct.’ [Citation.]†(People
v. Wallace (2008) 44 Cal.4th 1032, 1071.)
Prosecutorial misconduct under federal law requires reversal unless the
prosecutor’s error was harmless beyond a reasonable doubt. (People
v. Williams (2010) 49 Cal.4th 405, 467.)
For the sake of caution we will apply the federal standard.
In
light of the trial court’s instructions to the jury, and the trial court’s
responses to Juror No. 12’s questions, we conclude beyond a reasonable doubt
that a result more favorable to defendant would not have been reached in the
absence of the prosecutor’s comments about reasonable doubt. (See People
v. Williams, supra, 49 Cal.4th at
p. 467 [“result more favorableâ€].) The
trial court instructed the jury with CALCRIM No. 200, which provides: “If you believe that the attorneys’ comments
on the law conflict with my instructions, you must follow my
instructions.†The trial court also
instructed the jury on the reasonable doubt standard of proof. (CALCRIM No. 220.) Further, in answering Juror No. 12’s question
about the prosecutor’s “child with the cake†example, the trial court referred
the jury back to the reasonable doubt instruction.
We
presume the jury obeyed the admonition in CALCRIM No. 200 and disregarded any
part of the prosecutor’s argument that could have conflicted with the court’s
instructions on reasonable doubt. (
836-837.) Defendants do not assert any
errors concerning CALCRIM Nos. 200 and 220.
Accordingly, it does not appear defendants were prejudiced by the prosecutor’s
statements concerning reasonable doubt because the jurors received proper
instructions from the court and we assume they disregarded any conflicting
information from the prosecutor.
Defendants
assert the trial court’s responses to Juror No. 12’s questions compounded the
prosecutor’s errors related to the reasonable doubt standard. Williams argues Juror No. 12 was confused by
the prosecutor’s reasonable doubt presentation and the trial court “did not
provide any guidance.†Cole asserts the
trial court should have responded to Juror No. 12’s question with a “resounding
‘No.’†We disagree. The trial court referred the jury back to the
reasonable doubt instruction, saying, “You have the instruction.†Under the law, little else needed to be said
about reasonable doubt.
(§ 1096a.) Accordingly, we
find defendants’ arguments to be unpersuasive because the trial court gave an
appropriate response.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendants
contend their respective trial attorneys were ineffective for failing to object
to the prosecutor’s comments on reasonable doubt. We disagree.
“To
secure reversal of a conviction upon the ground of ineffective assistance of
counsel under either the state or federal Constitution, a defendant must
establish (1) that defense counsel’s performance fell below an objective
standard of reasonableness, i.e., that counsel’s performance did not meet the
standard to be expected of a reasonably competent attorney, and (2) that there
is a reasonable probability that defendant would have obtained a more favorable
result absent counsel’s shortcomings.
[Citations.] ‘A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.’ [Citations.]†(People
v. Cunningham (2001) 25 Cal.4th 926, 1003.)
We
have concluded ante, that the
prosecutor did not commit misconduct.
Therefore, we conclude defendants’ trial attorneys were not ineffective
for not raising an objection to the prosecutor’s statements. Since there was not misconduct, the defense
attorneys could not be expected to raise an objection. Further, as set forth ante, prejudice was not suffered due to the prosecutor’s
statements. The trial court’s
instructions and answers to Juror No. 12’s questions clarified any confusion
that may have been created by the prosecutor’s comments. Accordingly, to the extent it could be
concluded defense counsel should have objected, ineffective assistance has not
been shown because it is not reasonably probable defendants would have obtained
a more favorable result.
C. OPINION TESTIMONY
1. PROCEDURAL
HISTORY
Prior
to Bonaime testifying at trial, defendants objected to Bonaime testifying about
what he saw on the casino’s surveillance video.
Defense counsel said, “I believe [Bonaime] is going to give a long
narrative of speculation of what he believes the video shows. And I’d like to lodge an objection that the
video speaks for itself. It’s up for a
trier of fact, and not to allow the officer to testify to a narrative.â€
The
prosecutor raised two points in response.
First, the prosecutor asserted, “it’s important and relevant for the
jury to compare Investigator Bonaime’s interpretation of the video to what the
video actually says.†Second, the
prosecutor argued, “[T]here are some small details that to a trained officer’s
eye would become important or significant, but to a lay person’s eye, . . .
they might not notice or they might go by too quickly. So I think it’s worth the jury’s time and
relevant for them to get those details instead of just leaving them to their own
devices.â€
The
trial court reviewed the jury instruction concerning lay witness’s opinion
testimony. The court stated it would
“wait to hear what he testifies†to, but the court offered to read the
instruction about lay witness’s opinion testimony to the jury prior to Bonaime
testifying. Defense counsel responded,
“Defense would absolutely be requesting that the jury be admonished this is not
expert testimony, so when the officer is giving his speculation that he sees a
gun, and even further that it’s Mr. Williams on the actual tape, that this is
purely speculation in his opinion testimony.â€
The trial court said, “I’m not going to say that. You can argue that to the jury, but he can
explain it and why he thinks that’s the case and that’s his opinion and you can
cross-examine [him] on it.â€
The
trial court stated it would not instruct Bonaime or the prosecutor on how to
refer to the people in the videotape.
However, the trial court told defense counsel that defense counsel could
refer to the person in the videotape “as the gentleman in black.†Defense counsel asked the trial court, “Can
the Court instruct the officer to refer to him as Mr. Williams and not Theus?â€
trial court permitted Bonaime to refer to the people seen on the video as
“Williams†and “Cole.†Prior to Bonaime
testifying, the trial court instructed the jury on the law concerning a lay
witness’s opinion testimony.
When
Bonaime testified, he referred to the two men entering and exiting the casino
as “Williams†and “Cole.†However, after
the men exited the casino, Bonaime no longer used defendants’ names. When a person was seen moving away from the
van, Bonaime referred to the person as “a dark figure.†When a person was seen moving through the
parking structure, Bonaime labeled the person “[t]hat same male subject.†Bonaime remarked that the “male subject†was
wearing the same shoes that Williams could be seen wearing earlier in the
video, but Bonaime did not conclude Williams was the “male subject.†While testifying about the video recording of
the crimes, Bonaime continued referring to the person in the video as “subjectâ€
or “personâ€â€”not using either defendants’ name.
2. ANALYSIS
Cole
contends the trial court erred by permitting Bonaime’s testimony to invade the
province of the jury, in that Bonaime gave his opinion that Williams was
guilty. Williams joins in Cole’s
contention. We disagree.
The
People do not raise the issue of forfeiture as it concerns this issue. However, on our own, we note the trial court
did not render a ruling on the defense’s objection. We raise this issue for the sake of
clarifying the exact “ruling†we are reviewing.
The trial court told defense counsel, “I think what I’ll do is I’ll just
wait to hear what he testifies [to]. If
you want, I can read that instruction ahead of time before he testifies.†The trial court did not render a ruling on
defendant’s pretestimony objection. By
failing to secure a ruling, defendants have forfeited this issue for appeal. (People
v. Fudge (1994) 7 Cal.4th 1075, 1097.)
However, since the court is raising this procedural issue on its own, we
will address the substantive merits of the arguments. We seek only to clarify that the trial court
did not overrule the defense’s objection.
“A
lay witness may testify to an opinion if it is rationally based on the
witness’s perception and if it is helpful to a clear understanding of his
testimony. (Evid. Code, § 800.)†(People
v. Farnam (2002) 28 Cal.4th 107, 153.)
However, “a witness cannot express an opinion concerning the guilt or
innocence of the defendant.†(
37, 46-47.) “[O]pinions on guilt or
innocence are inadmissible because they are of no assistance to the trier of
fact[, because] the trier of fact is as competent as the witness to weigh the
evidence and draw a conclusion on the issue of guilt.†(Id.
at p. 47.) A trial court’s ruling
concerning admitting a lay witness’s opinion testimony is reviewed for an abuse
of discretion. (People v. Thornton (2007) 41 Cal.4th 391, 429.)
Bonaime
did not testify that in his opinion Williams was guilty, or that in his opinion
Williams was the person committing the robbery or holding the gun. Rather, Bonaime stated Williams could be seen
exiting the casino, and the person in the garage committing crimes was wearing
clothes similar to those worn by Williams when Williams was at the casino
earlier in the night. Given that Bonaime
did not give an opinion on Williams’s guilt or innocence, we conclude the trial
court acted reasonably and did not abuse its discretion.
Cole
goes on to assert the trial court erred because “the jury could judge for
itself whether the hair and clothing of the subject in the videotape matched
Williams, and could judge for itself whether the video showed any evidence of a
suspect with a gun.†Therefore, Cole
asserts Bonaime’s opinions “invaded the province of the jury.â€
Cole’s
argument is interesting, but we are left in a quandary of how to address
it. The true and primary problem here
appears to be that Bonaime was permitted to testify about the contents of the
recording in apparent violation of the secondary evidence rule, i.e., Bonaime
should not have been testifying to the contents of the recording. (Evid. Code, § 1523.) Since this objection was not raised below, it
has been forfeited. (
769, 797; People v Tully (2012) 54
Cal.4th 952, 1061.) Exacerbating this
problem is the fact that a ruling was not secured on defendants’ pretestimony
objection. Further complicating this
matter is the fact that Bonaime attempted to testify that when the man in the
video recording produced a gun and disappeared from view, the man was in the
area where victim2 had been robbed.
However, defense counsel objected that Bonaime was giving an improper
conclusion and the trial court sustained
the objection and granted a motion to
strike.
Thus,
while Cole may be correct that Bonaime’s testimony was problematic because he
was testifying about the contents of a recording, we cannot delve into this
issue because the trial court never rendered a ruling on the matter in a manner
unfavorable to defendants. The trial
court delayed its ruling, and then when the objection was raised about improper
conclusion testimony the trial court ruled in defendants’ favor. We cannot find error on the trial court’s
part where defendants abandoned their objection (opinion testimony) or never
raised an objection (secondary evidence).
Thus, we find Cole’s argument to be unpersuasive. (People
v. Partida (2005) 37 Cal.4th 428, 446 [forfeiture].)
D. CUMULATIVE ERROR
Cole
asserts the foregoing alleged errors combined to create a denial of due
process. We have concluded
claims of error by not raising timely objections in the trial court, (2) the
prosecutor and trial court did not err, and/or (3) defendants did not suffer
prejudice. Accordingly, we reject Cole’s
claim of cumulative error. (See
errors were forfeited or not found].)
The
judgments are affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
HOLLENHORST
Acting P. J.
CODRINGTON
J.
subsequent statutory references will be to the Penal Code unless indicated.
was one of Williams’s aliases.
