P. v. Lilly-Freeman
Filed 6/19/13 P. v. Lilly-Freeman CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
LASHAWN LANETTE LILLY-FREEMAN et al.,
Defendants and
Appellants.
G046686
(Super. Ct.
No. 09WF1703)
O P I N I O
N
Appeal from a judgment
of the Superior Court of
County, Dan McNerney, Judge.
Affirmed.
Richard Schwartzberg,
under appointment by the Court of Appeal, for Defendant and Appellant, LaShawn
Lanette Lilly-Freeman.
James M. Crawford, under
appointment by the Court of Appeal, for Defendant and Appellant, Latoya Janae
Lilly.
Kamala D. Harris,
Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon,
Jr., and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and
Respondent.
LaShawn Lanette
Lilly-Freeman (Lilly-Freeman) and Latoya Janae Lilly (Lilly) appeal from
judgments after a jury convicted them of two counts of second degree robbery
and found true firearm enhancements.
They argue their Sixth Amendment
confrontation clause rights were violated, and Lilly argues the prosecutor
committed misconduct. None of their
claims have merit, and we affirm the judgments.
FACTS
Arnaldo Esparza,
Salvador De La Torre, and Demarcus Asberry were working at Pep Boys in Garden
Grove one summer Sunday. At closing
time, they set the alarm, closed the store, and waited as Asberry, the manager
on duty, locked the store; Esparza’s attention was drawn to a suspicious gray
van parked awkwardly in the lot.
As they stood outside,
an African-American woman, later identified as Lilly-Freeman, dressed in black
and wearing a wig approached the men.
Lilly-Freeman told them to go back inside the store because she was
going to rob the store. When the men did
not take her seriously, Lilly-Freeman took a gun from her purse and pointed it
at De La Torre. Lilly-Freeman followed
the three men as they all walked upstairs to the office where the safe was
located. Asberry opened the safe, and
Lilly-Freeman told De La Torre to give her the money, which he did. The store’s alarm went off. Lilly-Freeman grabbed her purse and the
money, and ran out of the store.
Esparza and De La Torre
followed, and as they reached the front door, they saw the van pull up. Lilly-Freeman got into the passenger side,
and the van’s driver, later identified as Lilly, Lilly-Freeman’s sister, sped
away. They recorded the van’s license
plate number and called 911.
Officer James Franks was
on patrol when he received a dispatch to be on alert for a gray van with a
specific license plate number. Within
minutes he spotted the van and followed it until other officers arrived. Franks initiated a vehicle stop. Lilly was driving the van, and Lilly-Freeman was
in the passenger seat.
name="_ftnref1" title="">[1] Lilly gave the police a false name, address,
and date of birth. Officers found two
wigs, sunglasses, and a diaper bag; inside the diaper bag was a purse with
$2,096.41. A female officer searched
Lilly-Freeman
and found a gun between her legs. At an
in-field lineup, Esparza and
De
La Torre identified Lilly-Freeman as the trigger woman, and Esparza identified
Lilly as the driver. Asberry could not
identify anyone, which as it turns out was not a surprise as there was evidence
he and Lilly were high school classmates and they may have been in an amorous
relationship at the time of the stickup.
At the police station,
Franks interviewed Lilly, after advising her of her rights pursuant to
436. Lilly stated Lilly-Freeman is her
sister, she lived in Carson, and they went to Orange County to shop. Lilly claimed she and her sister had just
left a gas station in Long Beach when they stopped to give a beggar man some
money. She stated the man opened the van
door, got in, pointed a gun at them, and told her to drive. Lilly said that when they arrived at the Pep
Boys,
Lilly-Freeman
went inside for a few minutes, and when she returned to the van, Lilly drove
away. Lilly stated that when the officer
pulled them over, the man got out of the van and fled, leaving the gun and the
money behind.
Franks also advised
Lilly-Freeman of her Miranda rights
and interviewed her at the police station.
She told the same story as her sister.
Lilly-Freeman stated she and her sister had just left a gas station in
Long Beach when they stopped to give a Hispanic man some money. She claimed the man got inside the van,
pointed a gun at
them,
told Lilly to drive to a Pep Boys, and told her to rob the Pep Boys. She added though that the man gave her the
gun to rob the Pep Boys. After she
committed the robbery, she got back into the van and they drove until an
officer stopped them.
An information charged
Lilly-Freeman and Lilly with two counts of second degree robbery (Pen. Code,
§§ 211, 212.5, subd. (c)), and alleged Lilly-Freeman personally used a
firearm (Pen. Code, § 12022.53, subd. (b), and Lilly was armed with a
firearm (Pen. Code, § 12022, subd. (a)(1)).
Before trial, the
prosecutor moved to admit Lilly’s and Lilly-Freeman’s statements. The prosecutor argued it was not offering the
statements for their truth. Instead, the
prosecutor asserted it was offering the statements for their untruthfulness. The prosecutor claimed the statements were
circumstantial evidence of a conspiracy and preconceived plan to commit the
robbery and thus demonstrated consciousness of guilt.
At the hearing on the
motion, the trial court inquired whether the prosecutor sought to introduce the
statements not for their truth but instead for their falsity. The prosecutor agreed.
Lilly’s defense counsel
objected to admission of Lilly-Freeman’s statements on federal and state due
process grounds. Relying on
36 (Crawford), Lilly suggested the
prosecutor confused a confrontation clause analysis with a hearsay
analysis. Lilly argued Lilly-Freeman’s
statements were testimonial, as they were the result of a police interrogation,
and thus to be admitted, Lilly-Freeman must be unavailable to testify and Lilly
must have had the prior opportunity to cross-examine her. Lilly added that the possibility
Lilly-Freeman’s statements might be inconsistent with the prosecutor’s theory
of the case does not make her statements false.
Lilly-Freeman’s defense counsel joined in Lilly’s arguments and objected
to admission of Lilly’s statements.
The prosecutor responded
the statements were not testimonial because they were nonhearsay, i.e., they
were being offered for their falsity and not for their truth. The prosecutor added that the confrontation
clause does not prohibit the use of testimonial statements for purposes other
than establishing the truth of the matter asserted.
The trial court ruled
Lilly-Freeman’s and Lilly’s statements were admissible. The court explained that the fact their
statements were the result of police interrogation does not make their
statements testimonial as it appeared to the court that Crawford and its progeny was concerned with “traditional hearsay
statements.†It did not appear to the court
“testimonial statements†as defined by Crawford
and its progeny included statements being offered for a nonhearsay
purpose. Based on Crawford, the court opined the confrontation clause only required
the exclusion of statements offered for the truth of the matter asserted. The court reasoned: “It’s pretty clear that the [prosecutor] is
seeking to offer the statements made by the defendants to the police by the
mysterious Hispanic gentleman who orchestrated this robbery not for their
truth, but to demonstrate two things, first of all, the existence of a
conspiracy, and secondly, to demonstrate the consciousness of guilt by the
alleged falsehood of those statements. I
don’t know that the possibility that the statements actually are true prohibits
the prosecution from pursuing that theory, and, further, I don’t find that the
defendants are in any way prejudiced by the inadmissibility [verbatim] of those
statements because these statements are entirely exculpatory.â€
At trial, Franks
testified that when he pulled over the van, he did not see anyone flee the
van. Lilly-Freeman argued she was guilty
of the lesser included offense of larceny and not robbery because De La Torre
and Esparza were co-conspirators and were not in fear. Lilly contended she was not guilty of robbery
because she did not know Lilly-Freeman intended to rob the Pep Boys.
During closing argument,
the prosecutor stated that after defense counsel presented their closing
arguments, the prosecutor would have an opportunity to present rebuttal
argument. The prosecutor stated: “[Lilly-Freeman’s defense counsel] is going
to get up here. I suspect we will hear
more about his wife and kids. [Lilly’s
defense counsel] I suspect he will talk to you for about two hours. During those two hours I suspect we are going
to hear a lot of stories. Might get to
hear about some family comic book figures, might get to hear about magic
tricks, might get to hear about Abe Lincoln, might get to hear about his wife
and kids, too. So we will have a lot of
time to listen to all of that. [¶] At the end, I’m going to get back up and I’m
going to respond to the arguments that they make. I promise to try to keep it as focused as
possible. Not to drag on. I will not go another hour or two after no
matter how long they talk for. But
during their arguments, ask yourself is this reasonable and ask yourself is
this being used to help me determine the facts or is this being used to mislead
me. And we will talk, I’m sure, a lot
about what counsel meant to be misleading.
Keep that in mind as you’re listening to these stories and you’re
listening to the arguments.†The trial
court overruled Lilly’s defense counsel’s objection and denied his request for
an admonition.
During rebuttal, the
prosecutor stated: “Now, [Lilly’s
defense counsel] got up here and told you a story and said, my son said, Dad,
I’m like a super hero. [Lilly’s defense
counsel] tried to show a false modesty for a second and said, I’m not a super
hero, but I can tell a lie. Well, he
gets up here and he talks about the American justice system and how it is the
best in the world. What do we need it
for? Just put everyone up in front of
[Lilly’s defense counsel]. Let him make
the determination about what is right.
No, you are the ones that make the determination and his questions, no
matter how pointed they are, aren’t in evidence and they don’t suggest
anything. And I will get into some very
significant details of what that means as we go along.†After a brief sidebar discussion, the
prosecutor continued: “The purpose of a
lot of these arguments it’s what
counsel
does is very purposeful. It’s basically
- - it’s meant to have you focus in on certain little issues to get distracted
from the big picture and that’s the purpose of it.†The trial court again overruled Lilly’s
defense counsel’s objection.
The jury convicted
Lilly-Freeman and Lilly of both counts and found true the firearm
allegations. The trial court sentenced
Lilly-Freeman to 12 years in prison. The
trial court sentenced Lilly to two years in prison.
DISCUSSION
I. Confrontation
Clause
and Lilly argue the trial court erred in admitting their statements in
violation of the Sixth Amendment’s confrontation clause as interpreted in
In Crawford, supra, 541 U.S. at page 59, the Supreme Court of the
United
States held a testimonial statement from a witness who does not appear at trial
is inadmissible against the accused unless the witness is unavailable to
testify and the defendant had a prior opportunity to cross-examine the
witness. But this rule only applies to
testimonial statements that were introduced to establish the truth of the
matter asserted. (Ibid.; accord, Davis v.
Washington (2006) 547 U.S. 813, 823 [confrontation clause applies only to
testimonial hearsay].) As
out-of-court
statement is introduced not for the truth of the matter asserted but for some
other nonhearsay purpose, the confrontation clause is not implicated. (Crawford,
supra, 541 U.S. at p. 59, fn. 9 [“The [Confrontation] Clause . . . does not
bar the use of testimonial statements for purposes other than establishing the
truth of the matter assertedâ€].)
In People v. Cage (2007) 40
Cal.4th 965 (Cage), our California Supreme
Court noted Crawford is concerned
only with out-of-court statements offered for their truth. The Cage
court stated: “Crawford made clear that there are no confrontation
clause restrictions on the introduction of
out-of-court statements for nonhearsay
purposes. As Crawford confirmed, ‘[t]he [Confrontation] Clause does not bar the
use of [out-of-court] statements for purposes other than establishing the truth
of the matter asserted.’
[Citations.]†(
evidence under the Sixth Amendment Confrontation Clause. (Lilly
v. Virginia (1999) 527 U.S. 116, 136.)
Here, the trial court
properly admitted Lilly-Freeman’s and Lilly’s statements as their admission did
not violate Lilly-Freeman’s and Lilly’s confrontation rights as interpreted in
Cage, and subsequent cases have made
it clear that a defendant’s confrontation clause rights are not implicated when
evidence is admitted for a nonhearsay purpose, i.e., evidence is offered not to
prove the truth of the matter asserted but for some other purpose.
In
People v. Mitchell (2005) 131
Cal.App.4th 1210, 1216-1217 (Mitchell),
police officers responded to a robbery call and their response was
recorded. The trial court allowed the
prosecutor to present the tape as evidence at trial. (Id.
at
pp. 1218-1219.) On appeal, defendant argued admission of the
tape violated his confrontation rights under Crawford. (
on the tape were those of the officers who were subject to
cross-examination, the court addressed the
remaining statements. (
statements were not offered to prove the truth of the matter asserted. (Ibid.) The court opined those statements were
offered for a nonhearsay purpose, i.e., to establish how the police pursuit
developed and to describe the officers’ conduct. (Ibid.) The court opined: “Because the vast majority of the tape was
not offered to establish the truth of the matter asserted, much of the tape is
not hearsay at all. As nonhearsay, and
therefore nontestimonial evidence, a great portion of the police dispatch tape
is not subject to the analysis in Crawford. The Court in Crawford noted the
confrontation clause ‘does not bar the use of
testimonial statements for purposes other than establishing the truth of the
matter asserted.’†(Id. at pp. 1224-1225, fns. omitted; People v. Cooper (2007) 148 Cal.App.4th 731, 744 (Cooper) [defendant’s
videotaped interview with law enforcement properly admitted not for truth of
matter asserted but as evidence of victim’s mental state].)
Like in
offered for the truth of the matter asserted.
Their statements were offered for a nonhearsay purpose. The prosecutor offered the statements because
they were untruthful and circumstantial
evidence of a conspiracy and a preconceived plan to rob the Pep Boys. Admission of the statements was proper and
did not implicate Lilly-Freeman’s and Lilly’s confrontation rights because they
were admitted for a nonhearsay purpose.
In any event, admission
of their statements was harmless beyond a reasonable doubt. (People
v. Livingston (2012) 53 Cal.4th 1145, 1159.) Eyewitnesses identified Lilly-Freeman as the
woman with the gun and Lilly as the driver of the van. And Franks did not see anyone flee the van when
he initiated the traffic stop. When officers
searched the van, they found over $2,000 in cash, and Lilly-Freeman was hiding
a gun between her legs. Thus, there was
overwhelming evidence of their guilt.
Lilly-Freeman and Lilly
rely on Bullcoming v. New Mexico
(2011) ___ U.S. ___ [131 S.Ct. 2705] (Bullcoming),
Melendez-Diaz v. Massachusetts (2009)
557 U.S. 305 (Melendez-Diaz),
263 (Parrish), and
5 (Meises), to argue admission of
their statements violated their rights under the
In the two cases from
the highest court in the land, the evidence was offered for the truth of the
matter asserted. (Bullcoming, supra, ___ U.S. ___ [131 S.Ct. at
p.
2717] [laboratory report admitted to prove defendant’s blood-alcohol level];
[certificates admitted to prove substance defendants possessed was
cocaine].) Parrish, supra, 152 Cal.App.4th 263, 274-276, is inapposite as that
case involved the interplay between Crawford
and Evidence Code
section
356, when the prosecutor moved to admit portions of defendant’s interview with
police after defendant introduced portions of the same interview. That is not the issue we are faced with
here. Finally, we are not bound by a
lower federal court decision on federal questions (People v. Gray (2005) 37 Cal.4th 168, 226), and in
evidence was offered for the truth of the matter asserted, i.e.,
a
co-conspirator’s out-of-court statement defendant was involved in the drug
deal. Thus, Lilly-Freeman’s and Lilly’s
confrontation rights were not infringed by admission of their out-of-court
statements to Franks.
II. Prosecutorial
Misconduct
contends the prosecutor committed prejudicial misconduct when she denigrated
her defense counsel. We disagree.
“‘“‘“A prosecutor’s . .
. intemperate behavior violates the federal Constitution when it comprises a
pattern of conduct ‘so egregious that it infects the trial with such unfairness
as to make the conviction a denial of due process.Չۉ۪ [Citation.]
Conduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state law only if it
involves ‘“‘the use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury.Չۉ۪
[Citation.]†(
283-284.)
“It is generally
improper for the prosecutor to accuse defense counsel of fabricating a defense
[citations], or to imply that counsel is free to deceive the jury
[citations]. Such attacks on counsel’s
credibility risk focusing the jury’s attention on irrelevant matters and
diverting the prosecution from its proper role of commenting on the evidence
and drawing reasonable inferences therefrom.
[Citations.] [¶] Nevertheless, the prosecutor has wide
latitude in describing the deficiencies in opposing counsel’s tactics and
factual account. [Citations.] In so doing, the prosecutor may highlight the
discrepancies between counsel’s opening statement and the evidence.
[Citation.] Misconduct claims also have been rejected
where the prosecutor anticipates the flaws likely to appear in counsel’s
closing argument based on evidence that was introduced [citation], and where
the prosecutor criticizes the defense theory of the case because it lacks
evidentiary support [citation].†(
846-847.) “When the prosecution denigrates
defense counsel, there is a risk the jury will shift its attention from the
evidence to the alleged defense improprieties.
[Citations.]†(
732-733.)
People v. Cunningham (2001) 25 Cal.4th 926 (Cunningham), in instructive.
In that case, the prosecutor stated about defense counsel: “‘They are extremely fine. And what is their job? Their job is to create straw men. Their job is to put up smoke, red
herrings. And they have done a heck of a
good job. And my job is to straighten
that out and show you where the truth lies.
So let’s do that.’†(
575-576 (Marquez ), where the court
“determined that the prosecutor’s comments, that a ‘“heavy, heavy smokescreen
has been laid down [by the defense] to hide the truth from you,â€â€™ constituted a
proper argument in response to the defense presented.†(Cunningham,
supra, 25 Cal.4th at
p.
1002.) The court also cited to its
previous case People v. Cummings
(1993) 4 Cal.4th 1233, 1302 (Cummings),
where the court “concluded that a prosecutor’s argument
accusing
the defense of attempting to hide the truth, and his argument employing an ‘ink
from an octopus’ metaphor, would be understood as nothing more than urging the
jury not to be misled by the evidence.â€
(Cunningham, supra, 25 Cal.4th
at pp. 1002-1003.) The
a reasonable likelihood the jury was improperly influenced by the prosecutor’s
remarks. (Id. at p. 1002.) The court
concluded the prosecutor’s remarks “would be understood by the jury as an
admonition not to be misled by the defense interpretation of the evidence,
rather than as a personal attack on defense counsel.†(Id.
at p. 1003.)
Here, we agree the
prosecutor’s comments suggesting defense counsel would attempt to mislead the
jury were improper. Although it is
permissible for the prosecutor to urge the jury to ask themselves whether
defense counsel’s interpretation of the evidence is reasonable and urge the
jury not to be misled by the evidence, the prosecutor cannot attack defense
counsel personally by accusing defense counsel of intentionally misleading the
jury. For example, the prosecutor’s
statement the jury should evaluate defense counsel’s argument to determine
whether it was reasonable and whether it assisted the jury in determining the
facts was permissible. But the
prosecutor’s statements defense counsel tried to mislead the jury with their
arguments were improper. Unlike
the prosecutor did not urge the jury not to be misled by defense counsel’s
interpretation of the evidence, but instead accused defense counsel of
intentionally misleading the jury. Those
statements were improper.
Additionally, although
Lilly did not complain about the statements, the prosecutor also improperly
ridiculed defense counsel. There was no
need for the prosecutor to personally ridicule defense counsel by mentioning defense
counsel’s family or questioning his level of sincerity. These comments did nothing to aid the jury in
evaluating the evidence.
Although we agree the
prosecutor’s comments were improper, we nonetheless find they were harmless
beyond a reasonable doubt. (
1145, 1159.) As we explain above,
eyewitnesses identified Lilly as the van’s driver, and Franks did not see
anyone flee the van. When officers
searched the van, they found over $2,000 in cash. Therefore, there was overwhelming evidence of
Lilly’s guilt.
DISPOSITION
The judgment is
affirmed.
O’LEARY,
P. J.
WE CONCUR:
MOORE, J.
ARONSON, J.
name="_ftn1" title="">[1] Lilly-Freeman’s child was
also in the van, but the trial court excluded this evidence.
