P. v. Kennedy
Filed 4/24/13 P. v. Kennedy CA2/3
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and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
CRYSTAL KENNEDY,
Defendant and Appellant.
B236815
(Los Angeles
County
Super. Ct. No. BA369059)
In re CRYSTAL KENNEDY,
on Habeas Corpus.
B243878
APPEAL from a judgment of the Superior Court of
County, John Fisher, Judge. The
judgment is modified and, as modified, affirmed.
Petition for writ of habeas
corpus. Denied.
Alex Coolman, under appointment by the Court of
Appeal, for Defendant, Appellant, and Petitioner.
Kamala D. Harris, Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General,
Steve E. Mercer, Marc A. Kohm and James William Bilderback II, Deputy Attorneys
General, for Plaintiff and Respondent.
A jury
found defendant and appellant Crystal Kennedy guilty of
of habeas corpus.
title="">[1] In her appeal, Kennedy contends that
character evidence was improperly admitted; that the jury was misinstructed on
the law of aggravated mayhem; and that the prosecutor committed misconduct by
commenting on her Sixth Amendment right to counsel. In the habeas petition, she claims that her
trial counsel was ineffective because he failed to call certain witnesses and
failed to object to evidence and statements made by the trial court and the
prosecutor. Although the judgment must
be modified to correct a sentencing error, we reject all other contentions,
deny the petition, and affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
A. Prosecution
case.
On March 7,
2010, Leontinae Layton spent the night with Terry Williams at a house belonging
to Kennedy’s brother, Aaron Owens. In
the morning, Owens woke Layton and Williams.
Layton began dressing, and Owens told her to hurry. Layton got her bag and shoes, but Owens and
Williams continued to urge her to go.
Owens led Layton out the back door, and then Owens went back inside,
leaving Layton alone.
While
Layton was putting on her shoes outside, Kennedy, who seemed “antsy or
irritated†or “a little aggravated†came out through the back door of the house
and demanded to know what Layton was doing there and who she was. Having never seen Kennedy before, Layton
answered that it didn’t matter who she was and demanded back, “ ‘Who are
you’ †and “ ‘What’s going on?’ â€
Kennedy
went back into the house. Confused and a
little scared because she “didn’t know what the situation could escalate to,â€
Layton stayed outside. Her hand behind
her back, Kennedy returned and said, “ ‘I’m going to ask you this one more
time. Who are you and what are you doing
here?’ †Layton told her it
“ ‘doesn’t matter who I am. I’m
just here kicking it with the homies.’ â€
Kennedy said, “ ‘No you’re not, you lying bitch. You here to fuck my nigger.’ †Taking her hand from behind her back, Kennedy
hit Layton’s head with a glass cup she’d been concealing. When the cup didn’t break, Kennedy broke it
on a nearby pole. She proceeded to fight
Layton, who fought back.
name="_ftnref2" title="">[2] With the hand holding the glass, Kennedy kept
up a “constant action of hitting.†When
Layton fell, Kennedy came from behind her and hit the back of Layton’s head,
cutting through the hood of Layton’s sweatshirt. Layton had no weapon and was never able to
get the glass from Kennedy.
As she
struggled to get up, Layton felt blood dripping down her face and she screamed
for help. Owens pulled Kennedy off
Layton. Layton went back inside the
house, locked herself in the bathroom, and, disregarding Williams’s pleas not
to call the police, called 911 and said that a “girl†“broke a glass†and cut
her.
Layton
sustained cuts to the back of her head, face, arm, back, and hand. Part of the skin from her face had been
peeled off.
About two
months after the incident, Kennedy was arrested on May 10, 2010. The arresting officer did not notice any
injuries or scars on Kennedy’s face or body.
About six
years before this incident, Kennedy was involved in an altercation on November
21, 2003 with her then boyfriend.
Kennedy told the arresting officer, “ ‘I got mad because my man was
talking with that bitch. So we started
fighting and I bit him.’ †The
parties stipulated that Kennedy was convicted of misdemeanor battery in
connection with this incident.
B. Defense
case.
Williams
testified that he and Layton were at a party where they drank alcohol. They went to Owens’s house, and Layton
brought an overnight bag that had a drinking glass in it. The next morning, Owens told Williams that
someone was at the door. Afraid it was
his girlfriend, Kennedy, Williams told Layton to get dressed and go out the
back door. When Layton left, she had her
shoes on. Williams was putting his
clothes on when Layton, saying something about “ ‘some girl,’ †ran
past him into the bathroom. He did not
discourage her from calling the police.
Later that day, Williams saw Kennedy, whose forehead was injured. Kennedy said that she got into a fight with a
girl, who cut her with some glass. He
took photographs of Kennedy’s injuries at defense counsel’s instruction, and,
at trial, he identified them (Defense Exhibits A-E).
Kennedy
testified that after leaving a club she went to Owens’s house to use the
bathroom. When there was no answer at
the front door, she went to the back.
Seeing Layton, Kennedy asked who she was and what she was doing
there. Layton told her not to worry
“ ‘about who am I. Who the fuck are
you?’ †When Kennedy demanded to
know what Layton was doing there, Layton told her she was with her
“ ‘boyfriend Terry,’ †to which Kennedy replied, “ ‘Your
boyfriend Terry? That’s my nigger,
bitch.’ â€
Layton then punched Kennedy’s face,
and Kennedy punched her back. Layton
took a glass from her bag, broke it, and cut Kennedy’s back. They “tussl[ed]†for the object, but Kennedy
was never able to get the glass from Layton.
She never intended to break a glass cup and cut or deface Layton, but
that happened while they were fighting.
Hurt and scared, Kennedy left.
She didn’t see a doctor that day and she did not call the police. But she had Williams take a picture of her
injuries and she called a defense attorney on the same day she fought with
Layton.
About two weeks after the
altercation with Layton, Kennedy saw Dr. David Kim on March 26, 2010
to assess her injuries and to document them.
According to Dr. Kim, Kennedy had seven healing wounds on her back, face
and chest. Kennedy told Dr. Kim that she
was injured during an altercation at a club.
At trial, Dr. Kim did not recognize a cut on Kennedy’s back, depicted in
Defense Exhibit D. He said such a cut
would have required sutures.
II. Procedural background.
On January
28, 2011, a jury found Kennedy guilty of count 1, aggravated mayhem (Pen. Code,
§ 205).
On October
12, 2011, after denying Kennedy’s motion for new trial, the trial court
sentenced Kennedy to life with the possibility of parole. The court imposed but stayed under section
654 a one-year term for the great bodily injury enhancement.
DISCUSSION
I. The admission of Kennedy’s prior
battery under Evidence Code section 1101, subdivision (b).
Kennedy
contends that evidence of her 2003 battery conviction was inadmissible under
Evidence Code sections 1101, subdivision (b), and 352, because it merely showed
her propensity for violence. We
disagree.
A. Additional
facts.
Over
Kennedy’s objection, the prosecutor was allowed to introduce evidence of
Kennedy’s 2003 prior battery conviction. Although the defense argued that the evidence
was unduly prejudicial and was improper propensity evidence, the trial court
found that the evidence would be relevant to rebut a claim of
that it was relevant to Kennedy’s intent and motive, under Evidence Code
section 1101, subdivision (b). To
alleviate the possibility of prejudice, however, the trial court found that the
prosecutor could introduce the evidence in rebuttal only if Kennedy first put
on evidence of self-defense.
Los Angeles
County Deputy Sheriff Paul Morales then testified that, on November 21,
2003, he responded to a possible assault.
Kennedy told him she “ ‘got mad because my man was talking with
that bitch. So we started fighting and I
bit him.’ â€
Kennedy, however, denied biting her boyfriend and getting
mad at him because he was talking to another woman. She pled no contest to battery on her
boyfriend.
With
respect to this evidence, the trial court instructed the jury: “ ‘The prosecution presented evidence
that [Kennedy] committed another offense or certain behavior on an earlier
occasion involving an allegation of battery on another person by biting. [¶] So
you may consider this evidence only if the prosecution has proved by a
preponderance of the evidence that [Kennedy], in fact, committed this earlier
uncharged act or offense. [¶] . . .
[¶] If you decide that [Kennedy] committed
the uncharged act or offense you may, but are not required to, consider that
evidence for the limited purpose of deciding whether or not––and then we give
you the following scenario: That
[Kennedy] acted with the intent to commit the crimes alleged in this case, that
[Kennedy] had a motive to commit the offense alleged in this case or that
[Kennedy] reasonably and in good faith believed that she could use self-defense
in this case. [¶] In evaluating this evidence consider the
similarity or lack of similarity between the uncharged earlier act or offense
and the charged offense. [¶] Do not consider this evidence for any other
purpose except for the limited purposes of which I just stated, those three
categories, intent, motive and the issue of reasonableness of
self-defense. [¶] Do not conclude from this evidence that
[Kennedy] had a bad character or is disposed to commit crime. [¶] If
you conclude at that time [Kennedy] committed the uncharged offense or act,
that earlier situation, that conclusion is only one factor to consider along
with all the other evidence.’ â€
During
closing argument, the prosecutor commented on the prior incident: “[T]hey’re extremely similar circumstances to
the incident in November of 2003 which helps to inform what [Kennedy’s] motive
and intent was. And it helps to inform
the fact that this wasn’t a self-defense case, that [Kennedy] attacked. Why?
[¶] In November of 2003 when she
went to her then boyfriend’s home and saw him speaking, just speaking to a
strange woman, a woman she didn’t recognize, she attacked. That was enough to trigger her. [¶]
This is clearly someone who in that situation was not acting in
self-defense. And under the same
circumstances here faced with a situation where her man is with a strange woman
and even worse, in her own brother’s house, what does she do? She attacked again. Why?
Jealousy.†Later, the prosecutor
added, “[Kennedy], on the other hand, has the same motive she did in 2003. Jealousy.
She has the same exact motive.â€
In rebuttal
argument, the prosecutor said: “I agree
with counsel you do not convict a person because they have been convicted
before. The purpose of presenting
[Kennedy’s] 2003 conviction and the facts underlying it have nothing to do with
getting you to convict her solely based on that. [¶] It
goes to inform what her intent, what her motive was and whether or not this is
likely to be self-defense. That’s what
that evidence goes to. And specifically
when faced with similar circumstances[,] boyfriend, strange woman, [Kennedy]
attacked. [¶] And here you have the exact same
situation. And one thing that the
defense counsel said is that that was eight years ago. Well, all that means is that nothing much has
changed.â€
B.
by admitting the other crimes evidence.
Character
evidence is generally inadmissible to prove a person acted in conformity with
it on a specific occasion. (Evid. Code,
§ 1101, subd. (a).) It therefore is
inadmissible to establish criminal propensity.
(People v. Demetrulias (2006)
39 Cal.4th 1, 14.) It may be admissible,
however, where relevant to prove a material fact at issue, for example, motive,
opportunity, intent, preparation, plan, knowledge or identity. (Evid. Code, § 1101, subd. (b).) “The admissibility of other crimes evidence
depends on (1) the materiality of the facts sought to be proved,
(2) the tendency of the uncharged crimes to prove those facts, and
(3) the existence of any rule or policy requiring exclusion of the
evidence.†(People v. Carpenter (1997) 15 Cal.4th 312, 378-379, superseded by
statute on other grounds as stated in Verdin
v. Superior Court (2008) 43 Cal.4th 1096, 1106.) As the court explained in
at page 402: “The least degree of
similarity (between the uncharged act and the charged offense) is required . .
. to prove intent. [Citation.] ‘[T]he recurrence of a similar result . . .
tends (increasingly with each instance) to negative accident or inadvertence or
self-defense or good faith or other innocent mental state, and tends to
establish (provisionally, at least, though not certainly) the presence of the
normal, i.e., criminal, intent accompanying such an
act . . . .’
[Citation.] . . . [T]o be
admissible to prove intent, the uncharged misconduct must be sufficiently
similar to support the inference that the defendant ‘ “probably harbor[ed]
the same intent in each instance.â€
[Citations.]’ â€
Even if
evidence of an uncharged crime is admissible under Evidence Code section 1101,
subdivision (b), the evidence may be excluded under Evidence Code section 352
if its probative value is substantially outweighed by the probability its
admission would unfairly prejudice the defendant, mislead the jury, or confuse
the issues. (People v. Abilez (2007)
41 Cal.4th 472, 500; People v. Balcom
(1994) 7 Cal.4th 414, 426-427.) A trial
court’s ruling to admit evidence of an uncharged crime under Evidence Code
sections 1101, subdivision (b), and 352, is reviewed on appeal under the
abuse-of-discretion standard. (
864, overruled on other grounds in People
v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.)
The trial
court here found that the November 2003 incident was admissible because Kennedy
claimed self-defense. Self-defense
required Kennedy to actually and reasonably believe in the need to defend. (People
v. Humphrey (1996) 13 Cal.4th 1073, 1082.)
Kennedy clearly placed at issue her subjective intent in fighting and
cutting Layton by testifying that Layton was the aggressor and threw the first
punch. Kennedy’s prior battery against a
boyfriend who was talking to another woman suggests that jealousy, and not a
need for self-defense, motivated her attack against her boyfriend in 2003 and
her current attack against Layton, who had just spent the night with Kennedy’s
boyfriend. Evidence of the prior battery
therefore was admissible to establish Kennedy’s motive and intent, in that it
disproved her self-defense claim. (See,
e.g., People v. Demetrulias, supra,
39 Cal.4th at pp. 14-15 [prior assault and robbery tended to show that the
defendant stabbed current victim to take his money rather than to defend
himself]; People v. Ewoldt, supra, 7
Cal.4th at p. 402; People v. Simon
(1986) 184 Cal.App.3d 125, 130 [evidence that a prior crime was motivated by
jealousy could make it admissible to show that a current crime was similarly
motivated by jealousy rather than by self-defense].
Kennedy
argues, however, that the dissimilarity between the prior and current crimes
rendered the evidence inadmissible. The
prior and current crimes were dissimilar in that Kennedy committed the prior
act against her then boyfriend and she committed the current act against “the
other woman.†But “the probativeness of
other-crimes evidence on the issue of motive does not necessarily depend on
similarities between the charged and uncharged crimes, so long as the offenses
have a direct logical nexus.†(
at p. 15.) The crimes need only be
sufficiently similar to support an inference that defendant probably harbored
the same intent in each instance. (
In both instances, there was evidence that Kennedy discovered a
boyfriend cheating on her. These
circumstances were sufficiently similar to support the inference that jealousy
motivated Kennedy both times.
We also
reject the argument that the trial court abused its discretion under Evidence
Code section 352. The prior 2003 battery
was not particularly inflammatory in comparison to the current crime. In 2003, the evidence was that Kennedy bit
her boyfriend, as compared with the disfigurement of Layton in the current
case. The trial court, cognizant of the
possibility of prejudice and to minimize it, specifically ruled that the other
crimes evidence could not come in until Kennedy introduced evidence of
self-defense. The court gave a very
specific limiting instruction telling the jury that the prior crime could only
be considered on the issues of Kennedy’s “intent, motive and the issue of
reasonableness of self-defense.†The
jury was not to “conclude from this evidence that the defendant had a bad
character or is disposed to commit crime.â€
We presume that the jury understood and followed this instruction. (People
v. Gray (2005) 37 Cal.4th 168, 231.)
Under these
circumstances, the trial court did not abuse its discretion in admitting the
prior 2003 battery. And, to the extent
Kennedy argues that admission of the evidence violated her right to due
process, a state
court’s application of ordinary rules of evidence, including the rule stated in
Evidence Code section 352, generally does not infringe upon this right. (People
v. Cornwell (2005) 37 Cal.4th 50, 82, disapproved on another ground by
421, fn. 22.)
II. The admission of other character
evidence.
Kennedy
next argues that the trial court let in additional, inadmissible character and
propensity evidence when it overruled her trial counsel’s objection to
statements Layton made that Williams should have known Kennedy was “crazy†and
could “flip.†We conclude that Kennedy
was not prejudiced by the admission of these statements.
During
Layton’s 911 call, she told Williams he should have known this would
happen. When the prosecutor asked Layton
why she said that, Layton explained:
“From my understanding at that point she was his ex-girlfriend because,
I mean, no one would just go crazy like this if what she was saying––if she was
saying or she had to be his girlfriend or something. [¶]
And from my understanding he told me that he didn’t have a current
girlfriend. So if this is your
ex-girlfriend you know how she is. You
know she’s crazy. You know that she can
flip at any second.†Defense counsel
objected that the evidence lacked foundation, but the court overruled the
objection and said, “It’s just her statement.
That’s not necessarily offered for the truth. It’s just a conversation they’re having.†Layton added, “You would know. If you’ve been in a relationship with someone
you know how they are.†Defense counsel
stated, “[o]bjection,†and it was again overruled.
The
prosecutor then referenced during closing argument Layton’s remarks: “And remember what the victim said? At one point in the 911 call the victim, who
at that point is speaking to [Williams], says to him, ‘You should have known
this was going to happen. You should
have known this was going to happen.’
[¶] And when she was asked, ‘Why
did you say that to him.’ What did she
say? She said, ‘I said that because
look. If you have been with this woman,
if she’s really your ex-girlfriend you should have known how she would react if
she found you with another woman. You
should have known.’ â€
On appeal,
Kennedy argues that the foundation objection was well-taken, because Layton’s
statements “about [defendant’s] character were pure speculation, and had no
probative value†and had the effect of suggesting that Kennedy had a propensity
for violence. She also contends its
admission violated her right to due process.
Regardless
of its admissibility, Kennedy was not prejudiced by admission of Layton’s
statement, whether we review the issue under
People v. Watson (1956) 46 Cal.2d 818, 836 [whether it is reasonably
probable that a result more favorable to the appellant would result in the
absence of the error], or under Chapman
v. California (1967) 386 U.S. 18, 24 [whether the error was harmless beyond
a reasonable doubt]. Layton’s statement
to Williams that he should have known this could happen, that Kennedy was
“crazy†and could “flip at any second†had very little probative value. Beyond that one encounter, Layton did not
know Kennedy, and therefore could not speak to Kennedy’s propensity for
violence. It therefore did not expand on
any theme that Kennedy had a history of jealous rage, because Layton had no
such knowledge of that history.
III. CALCRIM No. 800.
Kennedy
makes two contentions concerning CALCRIM No. 800, the instruction on aggravated
mayhem: the instruction misstated the
elements of the crime and lowered the People’s burden of proof and the trial
court misstated the elements of the crime during voir dire.
A. CALCRIM
No. 800 does not misstate the law on aggravated mayhem.
When a criminal defendant contends
that an ambiguous or potentially misleading instruction violated his or her
federal constitutional right to a trial by jury, we must review the
instructions as a whole and determine “ ‘whether there is a reasonable
likelihood that the jury has applied the challenged instruction in a way’ that
violates the Constitution.
[Citation.]†(
72; see also People v. Smithey (1999)
20 Cal.4th 936, 963; People v. Frye
(1998) 18 Cal.4th 894, 957, disapproved on another point in
p. 421.) If an instruction omits or
improperly describes an element of the offense, preventing the jury from making
a necessary factual finding, it is constitutionally defective and subject to
the Chapman standard of review. (People
v. Williams (2001) 26 Cal.4th 779, 790.)
Without
objection from either party, the trial court here instructed the jury on
aggravated mayhem: “ ‘To prove the
defendant is guilty of this crime the prosecution must prove that, one, the
defendant unlawfully and maliciously disfigured someone permanently. [¶]
Two, when the defendant acted[,] she intended to permanently disfigure
the other person. [¶] And,
three, under the circumstances the defendant’s act showed extreme indifference
to the physical or psychological wellbeing of the other person. [¶]
Someone acts maliciously when he or she intentionally does a wrongful
act or when he or she acts with the unlawful intent to annoy or injure someone
else. [¶] A disfiguring injury may be permanent even if
it can be repaired by medical procedures.’ â€
The problem
with this instruction, defendant argues, is it directed the jury to consider
whether her act showed indifference
to the well-being of another person as opposed to whether the
demonstrated such indifference. Thus,
the trial court should have, as defense counsel requested below, instructed
with this: “Aggravated mayhem requires
the specific intent to cause the maiming injury. [¶]
Evidence that shows no more than an indiscriminate attack is
insufficient to prove the required specific intent. [¶]
Furthermore, specific intent to maim may not be inferred solely from
evidence that the injury inflicted actually constitutes mayhem. [¶]
Instead, there must be other facts and circumstances which support an
inference of intent to maim rather than to attack indiscriminately.â€
v. Park (2003) 112 Cal.App.4th 61, 64; CALCRIM No. 800 Use Notes.)
Under section 205, “[a] person is
guilty of aggravated mayhem when he or she unlawfully, under circumstances
manifesting extreme indifference to the physical or psychological well-being of
another person, intentionally causes permanent disability or disfigurement of
another human being or deprives a human being of a limb, organ, or member of
his or her body.†“Aggravated mayhem
requires proof the defendant specifically intended to maim—to cause a permanent
disability or disfigurement. [Citation.]
A jury may not find specific intent ‘solely from evidence that the
injury inflicted actually constitutes mayhem; instead, there must be other
facts and circumstances which support an inference of intent to maim rather
than to attack indiscriminately.’
[Citation.] ‘A jury may infer a
defendant’s specific intent from the circumstances attending the act, the
manner in which it is done, and the means used, among other factors.’ [Citation.]
‘[E]vidence of a “controlled and directed†attack or an attack of
“focused or limited scope†may provide substantial evidence of’ a specific
intent to maim. [Citations.]†(People
v. Szadziewicz (2008) 161 Cal.App.4th 823, 831; see also
828, 834.)
We do not
agree that CALCRIM No. 800 invited the jury to focus on Kennedy’s “act†to show
extreme indifference to Layton’s well-being as opposed to the “circumstancesâ€
attending the act. If the instruction
could be interpreted to direct the jury to consider merely whether her act
showed extreme indifference, then the phrase “under the circumstances†would be
superfluous. But the qualifying phrase,
“Under the circumstances,†clearly tells the jury to consider the surrounding
context in which the act occurred. Such
context would be, for example, the manner in which Kennedy came across Layton
in the backyard, the exchange of words between Layton and Kennedy before the
physical attack began, Kennedy’s return to the house to get a glass, and
Kennedy deliberately breaking the glass on a pole.
Thus, the instruction as given was
correct. The additional language
requested by the defense, although also legally correct, was duplicative, and
therefore the trial court did not err by refusing to give it. (See People
v. Coffman and Marlow (2004) 34 Cal.4th 1, 99 [a trial court need not give
a pinpoint instruction if merely duplicates other instructions].)
B. The
trial court’s statements during voir dire did not invite the jury to ignore
applicable law.
In a
related argument concerning the law on aggravated mayhem, Kennedy contends that
the trial court lowered the People’s burden of proof by misstating, during voir
dire, the law on aggravated mayhem. We
disagree.
At the
outset of voir dire, the trial court told the prospective jurors: “The defendant is charged with what we call
mayhem or in lay terms an assault using, like, a piece of glass or a broken
bottle on another female where there’s an allegation that injuries occurred to
the face, like, cuts and stitches and that kind of thing. [¶] So
the defendant has pled not guilty to assaulting, for lack of a better word,
this other person.†Then the trial court
told the jury that the “prosecution always goes first[,] so [the prosecutor] is
going to call her witnesses. She has
that burden of proof to go forward.
She’s saying that the defendant did this, you know, attack on another
person with the glass, the broken glass, and they got to prove it. So they go first.†Later, the trial court said, “[Defendant is]
charged with what we call mayhem. That’s
the technical name for it. The
allegation is that she with, like, a broken glass bottle or some object like
that attacked another female and slashed––made some slashes in that person’s
body or face area causing injury.â€
Kennedy
argues that these comments encouraged the prospective jurors to disregard the
elements of aggravated mayhem and lowered the burden of proof by stating that
Kennedy was on trial merely for “mayhem†rather than aggravated mayhem; by
likening the charge to assault; and by omitting elements of the crime when
describing aggravated mayhem. The
comments did no such thing. First, the
comments were clearly not intended to be a substitute for the formal
instructions, which we have either found to be legally correct or to which
Kennedy asserts no challenge. (
716 [comments trial court made about mitigating evidence were not intended to
be a substitute for full instructions at the end of the trial].) The trial court clearly conveyed that it was
merely giving a shorthand overview of the case.
Second, the court’s abbreviated reference to the crime as “mayhem†or
“assault†rather than “aggravated mayhem†could hardly have induced the jury to
disregard the specific intent element in the latter when the prospective
jurors, at that point in voir dire, had received no instructions on the elements of any crime and the trial court did
not discuss the intent element. Third,
the court was trying to give the jury a simple and abbreviated sense of what is
aggravated mayhem—a crime many outside the criminal legal world are likely
unfamiliar with—by saying it was, here, an attack with glass. By omitting the full and complete elements of
the crime, such as disfigurement, the trial court was in no way encouraging the
jury to ignore them. (Cf.
976 [trial court’s repeated misstatements about the reasonable doubt standard,
which misstatements the prosecutor echoed in closing arguments, required
reversal of the judgment].)
We
therefore reject the notion that the trial court’s brief and innocuous comments
violated Kennedy’s right to due process and rendered her trial fundamentally
unfair. Because we reject her
contentions concerning the effect of the court’s comments, we also reject her
claim that her trial counsel provided ineffective assistance of counsel by
failing to object to them.
name="_ftnref8" title="">[8] We have found no error, and therefore Kennedy
cannot have been prejudiced by any inaction on her trial counsel’s part. (Strickland
v. Washington (1984) 466 U.S. 668, 694; People
v. Holt (1997) 15 Cal.4th 619, 703.)
IV. Prosecutorial misconduct.
Kennedy
contends that statements the prosecutor made during closing argument about her
calling a defense attorney after the incident were impermissible comments on
her Sixth Amendment right to counsel,
and the comments violated her due process rights. We disagree.
A. Additional
facts.
During the
defense case, defense counsel asked Williams, Kennedy’s boyfriend, why he took
photographs of her injuries. Williams
said he took the photographs at defense counsel’s instruction. Thereafter, defense counsel asked Kennedy if
at some point she or Williams gave him the photographs, and Kennedy answered
that she gave defense counsel the photographs “[r]ight after the incident
occurred.†While cross-examining
Kennedy, the prosecutor asked if, on the same day of the incident, she “didn’t
call the police,†“didn’t go to the hospital,†and “didn’t go to a doctor,†but
“you got a defense attorney[?]â€
During closing arguments, the
prosecutor commented on Kennedy’s immediate consultation with an attorney after
the altercation with Layton:
·
“What does the person who is guilty look like
and sound like? Looks like nothing. Sounds like nothing because she fled, because
she didn’t turn herself in to the police and because the only person that she
called . . . was the defense attorney.†Defense counsel interjected an objection (no
grounds were stated), but it was overruled.
·
“So common sense. What does a person who claims to be the
victim, what does someone who’s just been attacked in the home of her own
brother do if they’ve run away in pain and in fear for their life? They call the police. But she didn’t. [¶]
She’s in pain from her injuries.
So you go to the doctor or the hospital.
But she didn’t. [¶] What did the defendant do? She called the defense attorney. Reasonably this doesn’t make any sense. If the defendant wants you to believe that
she was––she was the victim, that she was attacked in her own brother’s house,
that she was in pain and in fear for her life, then her reaction to that is
entirely inconsistent.â€
·
The prosecutor asked the jury to reject as
unreasonable “that a victim would run away, remain out on a warrant, call a
defense attorney [that] same day, not go to the hospital, not call the police.â€
·
After
arguing that the victim behaved consistently with the truth, the prosecutor
contrasted the victim’s behavior with Kennedy’s: “What did the defendant do? She didn’t call 911. She called the defense attorney. She called the defense attorney. [¶]
Why do you call a defense attorney after an attack if you’re the
victim? Why? Because you’re not a victim. You call a defense attorney because you know
you’re in trouble, because you know you’re guilty.â€
·
Returning to this theme in her rebuttal argument,
the prosecutor said: “The arguments that
were presented to you on my closing about the fact that the defendant got a
defense lawyer the day that this happened, about the fact that she only went to
a doctor 19 days or 20 days later after speaking to her counsel, those have
nothing to do with defense counsel. He’s
doing his job. [¶] And I have no idea what he told her or didn’t
tell her to do, but I know what she told us.
She told us she admitted that she went and called the defense counsel
after this happened. The victim called
911. The guilty person called the
defense counsel. It’s logic. [¶]
Why didn’t Ms. Layton call a defense attorney? Because she didn’t need one. Because she’s the victim. Because she didn’t do anything wrong. And none of that has anything to do with
defense counsel.â€
·
“If
you flee a location because you’re in pain and you think you’ve been attacked
and you have no idea that the police are looking for you or that you’re in any
way a defendant why do you get a defense attorney? [¶]
Why do you take photographs at the request of a defense attorney? [¶] . . . [¶] If you don’t have any clue that you’re going
to be on the defense you wouldn’t be building up a defense. It just doesn’t make any sense. And, again, it’s not about defense
counsel. It’s not about him. It’s certainly not about me. This case has nothing to do with either one
of us. It has to do with the defendant’s
actions and the fact that in every step her actions scream consciousness of
guilt.â€
B.
to counsel.
In all criminal prosecutions, the
accused shall enjoy the right to have the assistance of counsel for his or her
defense. (U.S. Const., 6th Amend.; Cal.
Const., art. 1, § 15.) A prosecutor
therefore may not comment on a defendant’s post-arrest invocation of right to
counsel without potentially violating the defendant’s constitutional rights to
due process and against self-incrimination.
(See, e.g., People v. Schindler (1980)
114 Cal.App.3d 178, 185.) A prosecutor
similarly may not suggest to the jury that a defendant’s pre-arrest retention of counsel is inconsistent with innocence
without potentially violating the defendant’s due process guarantee of a fair
trial under the Fourteenth Amendment.
(See, e.g., People v. Fabert (1982)
127 Cal.App.3d 604; United States ex rel.
Macon v. Yeager (3d Cir. 1973) 476
F.2d 613 (Macon);
278, 281-282 [973 A.2d 1207].)
The prosecutor here repeatedly
commented during closing argument on Kennedy’s pre-arrest retention of counsel,
suggesting that she hired an attorney because she was guilty and that doing so
was inconsistent with innocence but consistent with a “consciousness of
guilt.†Comments much milder than this
have required convictions to be reversed.
In Macon, for example, there
was evidence that after the defendant shot the victim, he consulted his
attorney. (Macon, supra, 476 F.2d at
p. 614.) The prosecutor, in his
summation to the jury, asked whether this was an “act of innocence?†(Ibid.) Relying on Griffin v. California (1965) 380 U.S. 609, which held that a
prosecutor’s suggestion that the jury could infer guilt from the defendant’s
failure to take the stand violated the defendant’s Fifth Amendment right
against self-incrimination, Macon said: “For the purpose of the ‘penalty’ analysis,
however, we perceive little, if any, valid distinction between the privilege
against self-incrimination and the right
to counsel. It can be argued, with
equal vigor and logical support, as to either the Griffin situation or the present case, that a prosecutor’s comment
seeking to raise in the jurors’ minds an inference of guilt from the
defendant’s constitutionally protected conduct constitutes a ‘penalty’ on the
free exercise of a constitutional right.â€
(Macon, at p. 615.)
This division cited
Cal.App.3d 178. In Schindler, the defendant killed her husband, who had killed his
first wife. To counter the defendant’s
defense of diminished capacity, the prosecutor elicited evidence that the
defendant hired as her defense attorney the man who had prosecuted her husband
for the murder of his first wife. (
that the defendant’s intentional selection of defense counsel negated her
alleged “panic state†and showed her guilt.
(Id. at pp. 184-185.)
Schindler
concluded that “defendant clearly was impermissibly penalized for exercising her
constitutional right to counsel by the prosecutor’s flagrantly improper
argument that the time and circumstances surrounding her selection of this
particular defense counsel . . . impeached her testimony and showed she was
guilty of murder.†(People v. Schindler, supra, 114 Cal.App.3d at p. 189.) Because the
only issue at trial was the defendant’s intent and mental capacity at the time
the crime was committed, and the inadmissible evidence and improper argument
went directly to this issue, the error was prejudicial. (Id. at
p. 190; see also People v. Fabert, supra,
127 Cal.App.3d at p. 610 [“comments that penalize the defendant for the
exercise of her right to counsel, and that also strike at the core of her
defense, cannot be considered harmless errorâ€]; but see People v. Coffman and Marlow, supra, 34 Cal.4th at p. 66
[brief and mild reference to the defendant’s invocation of his right to counsel
was harmless error]; People v. Huggins (2006)
38 Cal.4th 175, 199.)
The prosecutor’s comments here
equating Kennedy’s consultation with a defense counsel with guilt would clearly
constitute a “penalty†on Kennedy’s constitutional right to counsel, but for
one crucial distinction between this case and the authorities we have cited: Kennedy
first injected her hiring of defense counsel into the case. While examining Williams, defense counsel
asked why he took the photographs of Kennedy:
“Q.
Okay. And was there––how is that
you decided to take the photograph?
[¶] Why did you take the photograph?
“A.
Why did I take the photograph?
“Q.
Yes.
“A.
Because it’s an injury. And
I’m––I took the photograph and got in touch with you.
“Q.
To do what?
“A.
Get in touch with you.
“Q.
Did you call me that day?
“A.
Yes, I did.
“Q.
Okay. And did I ask you to take
the photograph?
“A.
Yes, you did.â€
Then, when examining Kennedy, defense counsel asked her,
“And at some point did you, you or Mr. Williams, provide me with the
pictures?†Kennedy answered, “Right
after the incident occurred.â€
In the absence of defense counsel’s
questions, we might agree that the prosecutor’s comments on Kennedy’s right to
counsel were fundamentally unfair. But
where, as here, a defendant uses her invocation of counsel to suggest her
innocence or to bolster her credibility, it would be unfair to preclude the
prosecutor from making the opposite argument.
(See, e.g., State v. Santiago (2007)
100 Conn.App. 236 [917 A.2d 1051].) In
invited the jury to find that his client did the right thing when, after shooting
the victim, he went to the police. The
prosecutor responded by detailing exactly what the defendant did after shooting
the victim, namely, he “ ‘ditched’ †the gun, went home, showered,
called his attorney, and went to the police, accompanied by his attorney. Santiago
held that the prosecutor did not commit misconduct because it would be
“fundamentally unfair to the state were we to permit the defendant’s attorney
to comment on the evidence of his conduct after the shooting and to suggest
reasonable inferences to be drawn from that conduct, while precluding the state
from doing the same in response.†(
p. 1059].)
Here, a reasonable interpretation
of defense counsel’s line of questioning is he was trying to show that Kennedy
took photographs of her injuries because he
was constructing a defense, not she. In
other words, she didn’t take the photographs because she was guilty, she took
them at her counsel’s instruction. Under
the very specific circumstances here, Kennedy cannot argue that her invocation
of counsel suggests her innocence and, at the same time, preclude the
prosecutor from suggesting the opposite.
We therefore conclude that Kennedy’s constitutional rights were not
violated by the prosecutor’s comments about Kennedy’s hiring of defense
counsel.
Because defense counsel’s purported
failure to object to the prosecutor’s comments is a subject in the habeas
petition, we also address whether defense counsel forfeited any issue on
appeal, thereby rendering ineffective assistance. To preserve a claim a prosecutor improperly
commented on the defendant’s exercise of a constitutional right, the defendant
must object to the prosecutor’s comments on this basis. (See People
v. Valdez (2004) 32 Cal.4th 73, 127; People
v. Medina (1995) 11 Cal.4th 694, 756.)
Defense counsel objected the first time the prosecutor mentioned during
closing argument that defendant hired counsel.
The “objection,†however, was unspecified and the trial court overruled
it.
Although a defendant generally may
not argue on appeal that evidence should have been excluded for a reason not
asserted at trial, a defendant may argue that the “asserted error in overruling
the trial objection had the legal consequence of violating due process.†(People
v. Partida (2005) 37 Cal.4th 428, 431.)
To the extent the prosecutor’s comments had the potential legal
consequence of violating defendant’s due process rights, we may consider that
constitutional claim as not forfeited.
Therefore, based on defense counsel’s initial objection, we conclude he
did not fail to object. We also reject defendant’s
related contention, raised in the habeas petition, that her trial counsel was
ineffective for failing to renew the objection.
Based on the trial court’s denial of the initial objection, defense
counsel could have reasonably believed that further objections would be futile,
only highlighting further the prosecutor’s argument or be
counterproductive. (People v. Hill (1998) 17 Cal.4th 800, 820-821.)
In any event, we have concluded
that the prosecutor’s comments were not misconduct and did not violate
defendant’s due process rights.
Therefore, they were not objectionable and defense counsel cannot be
faulted for either failing to object on the proper ground or to raise additional
objections. (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Holt, supra, 15 Cal.4th at p. 703.)
V. Sentencing error.
Although
the information alleged a great bodily injury enhancement under section
12022.7, subdivision (a), and personal use of a deadly weapon under section
12022, subdivision (b)(1), the jury was neither instructed on those
enhancements nor rendered a verdict on them.
The trial court, however, imposed but stayed under section 654 a
one-year term for the great bodily injury enhancement. The People concede that the one-year term
must be stricken and the abstract of judgment corrected.
VI. The petition for writ of habeas corpus.
In her
petition for writ of habeas corpus, Kennedy claims that her imprisonment is
unlawful because she was deprived of her rights under the Sixth and Fourteenth
Amendments when her trial counsel failed to call two witness, Shanisha Robinson
and Owens, failed to object to prosecutorial misconduct concerning her right to
counsel and concerning her prior conviction, and failed to object to the trial
court’s comments during voir dire.
We have already rejected in
the direct appeal Kennedy’s claims that the prosecutor committed misconduct by
referring to her right to counsel and by failing to object to the trial court’s
comments. We now consider, and reject,
her remaining claims raised in the petition.
A. Law on
ineffective assistance of counsel claims.
“A
meritorious claim of constitutionally ineffective assistance must establish
both: ‘(1) that counsel’s representation fell below an objective standard of
reasonableness; and (2) that there is
a reasonable probability that, but for counsel’s unprofessional errors, a
determination more favorable to defendant would have resulted. [Citations.]
If the defendant makes an insufficient showing on either one of these
components, the ineffective assistance claim fails.’ †(People
v. Holt, supra, 15 Cal.4th at
p. 703; see also People v. Lopez
(2008) 42 Cal.4th 960, 966; Strickland v.
Washington, supra, 466 U.S. at p. 687.) A reasonable probability is a probability
sufficient to undermine confidence in the outcome. (People
v. Bolin (1998) 18 Cal.4th 297, 333.)
“ ‘
“Reviewing courts defer to counsel’s reasonable tactical decisions in examining
a claim of ineffective assistance of counsel [citation], and there is a ‘strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.’ â€
[Citations.]’ †(
1254; see also People v. Lopez, supra,
42 Cal.4th at p. 966.) If the
record on appeal sheds no light on why counsel acted or failed to act in the
manner challenged, an appellate claim of ineffective assistance of counsel must
be rejected unless counsel was asked for an explanation and failed to provide
one, or there simply could be no satisfactory explanation. (People
v. Mendoza Tello (1997) 15 Cal.4th 264, 266; Jones, at p. 1254.)
“Were it otherwise, appellate courts would be required to engage in the
‘ “perilous process†’ of second-guessing counsel’s trial strategy.†(People
v. Frye (1998) 18 Cal.4th 894, 979, disapproved on another ground in
p. 421, fn. 22.)
B. The failure to call
Shanisha Robinson.
In her
declaration dated September 2, 2012, Robinson states that she saw Kennedy on
March 8, 2010, two days after the altercation with Layton. Kennedy had cuts on her face, shoulder and
back, and the cuts to her face and shoulder looked like they might require
stitches. Kennedy told Robinson that she
got into a fight with a girl.
Kennedy
contends that Robinson’s testimony was particularly significant because it went
to Kennedy’s intent, specifically, it tended to show that she lacked the
specific intent required of aggravated mayhem.
Robinson’s testimony buttressed the defense theory either that Kennedy
acted in self-defense or that this was a “spontaneous melee in which both sides
were cut rather than an intentional act of disfigurement,†which might have led
the jury to convict Kennedy of the lesser offense of simple mayhem.
Although
Kennedy’s trial counsel declined her request to explain why he did not call
Robinson, there are several tactical reasons why he might have decided not to
call her as a witness at trial.
name="_ftnref9" title="">[9] First, Williams gave essentially the same
testimony, and trial counsel might have believed that the evidence was merely
cumulative. Second, Robinson could say
only that she saw the injuries two days after Kennedy’s fight with Layton. Robinson had no personal knowledge precisely
when or how they were inflicted. We therefore do not agree with Kennedy’s
assertion that Robinson’s testimony would have spoken to her lack of specific
intent to commit mayhem. Third, the
major injury in dispute was the injury depicted in Defense Exhibit D. Kennedy’s own doctor could not identify that
injury, and nothing in Robinson’s declaration identifies the injury or connects
it to the altercation with Layton.
C. The failure to call
Aaron Owens.
Owens,
defendant’s brother, signed a declaration dated August 13, 2012 stating that
after hearing a knock on his door the morning of March 7, 2010, he never opened
the door for his sister and she never came into the house. If she had come into the house to get a
glass, he “would have been able to see her do that.†He did not witness a fight between Kennedy
and Layton and he did not intervene in one.
As with
Robinson’s testimony, we can easily discern several reasons why trial counsel
could have decided not to call Owens as a witness. First, Owens was Kennedy’s brother. As her brother, counsel could have thought
his credibility would be too suspect.
Counsel could have believed that a jury would reject as incredible his assertion
he didn’t let his sister into his house (after all, why force Layton out of the
house if he never let his sister in) and that he did nothing to intervene in an
attack which, it is reasonable to infer, he was aware of. Second, Owens’s testimony did not negate
Layton’s testimony Kennedy went into the house to get a glass. That Owens “would have been able to seeâ€
Kennedy get a glass does not show that Kennedy never went into the house to get
the weapon. The only way he could say
that Kennedy never got a glass is if he had a view of the entire house at once
or if he was with her in the house, a fact he denied. Even if the jury believed that Kennedy got
into the backyard by coming around the house rather than through it, the jury
still could have believed that Kennedy went into the house through the back
door to get the glass.
D. Mischaracterization
of the 2003 prior battery.
Finally,
Kennedy contends that her trial counsel was ineffective because he failed to
object to the prosecutor’s characterization of the prior 2003 battery. The evidence, introduced via the officer who
responded to the scene, was that Kennedy said, “ ‘I got mad because my man
was talking with that bitch. So we
started fighting and I bit him.’ â€
Based on this, Kennedy argues that the evidence was she fought with her
boyfriend and not with the woman he was talking to.
But when
the prosecutor questioned Kennedy about the incident, he characterized the
incident as a fight with the woman. He
asked Kennedy whether when she “started attacking that female and when your
boyfriend intervened you bit him,†and she answered, “No.†During closing argument, the prosecutor
argued that Kennedy “went after the boyfriend when he tried to intervene after
she started attacking the female†and the only reason Kennedy didn’t attack
Williams during the current altercation with Layton was he didn’t intervene on
her behalf.
There was a
tactical reason why Kennedy’s trial counsel may not have objected: this was a fair characterization of the
evidence. Certainly, one interpretation
of Kennedy’s statement that “ ‘we started fighting and I bit him’ â€
is she fought with her boyfriend and bit him.
But because it was never clarified who the “we†referred to, Kennedy
could also have been referring to the woman her boyfriend was talking to. And although Kennedy denied that she bit her
boyfriend after he intervened in her attack on the woman, it is unclear whether
she was denying the incident occurred or what exactly she was denying. We therefore conclude that Kennedy’s trial
counsel did not give ineffective assistance by failing to object to these
statements.
VII. Cumulative error.
Defendant contends that the
cumulative effect of the purported errors undermined the trial’s fundamental
fairness and requires reversal. As we
have “ ‘either rejected on the merits defendant’s claims of error or have found
any assumed errors to be nonprejudicial,’ †we reach the same conclusion with
respect to the cumulative effect of any purported errors. (People
v. Cole (2004) 33 Cal.4th 1158, 1235-1236; People v. Butler (2009) 46 Cal.4th 847, 885.)
>
The one-year enhancement imposed under section 12022.7,
subdivision (a), is stricken. The Clerk
of the Superior Court is directed to forward a modified abstract of judgment
reflecting this modification to the Department of Corrections. The judgment is otherwise affirmed as
modified. The petition for writ of
habeas corpus is denied.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH,
J.
We concur:
KLEIN,
P. J.
KITCHING,
J.
issued an order to show cause and ordered the appeal and the habeas petition to
be heard together.
was unsure whether she punched or kicked defendant first once she saw defendant
“rush[ing]†her, glass cup in hand.
