P. v. McFadden
Filed 9/11/12 P. v.
McFadden CA3
NOT
TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
JAMES LAWRENCE MCFADDEN,
Defendant and Appellant.
C069162
(Super.
Ct. No. 11F00301)
A fight in the
parking lot of a bowling alley ended in a stabbing. A jury convicted 17-year-old defendant James
McFadden of assault with a knife (Pen.
Code, § 245, subd. (a)(1)) and found he inflicted great bodily injury on his
victim (Pen. Code, § 12022.7, subd. (a)).
Sentenced to five years in prison, defendant appeals. He claims
error, and error in the trial court’s imposition of certain fees. As we explain, we find no error and shall
affirm.
Derreq Knaules
went to Country Club Lanes with friends one night, and left the building about 4:00 a.m. the morning of January 9, 2011.
In the parking lot, Knaules became involved in a fight and was
stabbed. He spent a month in the
hospital and had several surgeries. The
wound penetrated his left kidney, which was removed.
Fights were common
in that parking lot, occurring about once every two weeks. Country Club Lanes had two security guards;
on the weekends there were also two deputy sheriffs working off-duty outside.
Before the
stabbing, the night manager, Allen Marinovich, learned there was a fight and
went outside. He saw three people
fighting--it appeared to him to be two against one other person. After that fight had “broken up,†another man
ran up to the one man who had been involved in the earlier fight and punched
him in the side of the face, a “blind-side punch,†as a result of which he
“flew†onto Marinovich’s car hood and rolled off, where he “continued to get
beat.†Security arrived and used pepper
spray to break up that fight. Then the man who had “sucker punched†the man
being beaten “threw an awkward downward punch†at him in a downward thrusting
motion. The victim of the punch
(Knaules) grabbed himself and bent down, “kind of slouched over.â€
Marinovich did not
see anything in the hand of the man who threw the last punch. The man was wearing a black jacket and a
black bomber hat with ear flaps. He
sprinted toward Watt Avenue. Marinovich
told security to detain the man in the black bomber hat, who was later
identified as defendant.
Marinovich did not
realize that what he had seen was a stabbing until he heard screaming that
someone had been stabbed. He did not see
a knife or blood. Knaules went up to a
police officer and told him he had been stabbed.
Officer Alexander
Conroy was a police officer for the Los Rios Community College District who
also worked as a security guard at Country Club Lanes. He saw an individual “sucker-punch†Knaules,
who fell over the car and was attacked on the ground. Another person joined the fight. Conroy tried to use pepper spray to break up
the fight, and was able to push the man with the black hat off of Knaules, who
was on the ground.
Conroy saw the man
with the black hat run behind a minivan and adjust something at his waist. Conroy heard the sound of metal falling to
the ground and saw the man with the black hat make a kicking motion. The object “skittled†and came to rest under
the van. Conroy saw the man in the black
hat and another walking away quickly, but trying to appear casual.
Conroy first
detained a man in a gray bomber hat. He
then detained the man in the black hat (defendant) and his companion.
car, he immediately pointed to defendant and said “that’s him.†The police took defendant out of the car
and Marinovich identified him.
Marinovich had no doubt about his identification.
The police
retrieved a knife from under the van.
The knife was not bloody, nor was its sheath. There was human tissue on the knife--DNA
testing showed it was consistent with Knaules’s DNA. There was a mixture of DNA from five individuals
on the sheath; a profile was inconclusive.
There was not enough DNA on the handle for a comparison. There was no blood on defendant’s clothes or
shoes.
Knaules and his
friend testified the man who stabbed Knaules was different than the man with
whom Knaules had fought.
A psychology
professor testified for the defense about the problems with eyewitness
identification. He testified that
accuracy is greatly compromised at the distance Marinovich was from the
fight. Also, focusing on multiple targets
and on persons of a different race reduces accuracy.
DISCUSSION
I
Prosecutorial Misconduct
Defendant first
contends the People committed misconduct by comparing the trial to a jigsaw
puzzle in opening statement. Defendant
labels the comparison misconduct, arguing that it undermined both the
constitutional requirement that guilt be proven beyond a reasonable doubt and
the presumption of innocence, because it suggested defendant’s guilt was a
foregone conclusion. He contends any
failure to object was ineffective assistance of counsel.
The People began
their opening statement by explaining the purpose of an opening statement,
comparing it to the picture on a jigsaw puzzle box. Defendant, through counsel, raised no
objection. By failing to object,
defendant has forfeited his challenge to statements made during the People’s
opening statement. (People v. Foster (2010) 50 Cal.4th 1301, 1352.) However,
because defendant also argues his counsel was ineffective in failing to object
to the People’s analogy, we reach the merits immediately post.
Puzzle Analogy
In the disputed
portion of their opening statement, the People told the jury: “Now, the purpose of the opening statement,
it’s kind of like when you are doing a jigsaw puzzle and you are looking at the
box to see what the end product is going to be.
[¶] All the witnesses that come
in are like the pieces of the puzzle that at the conclusion are going to put
together the entire picture of what happened in the early morning hours of
January 9th.â€
Defendant relies
on People v. Katzenberger (2009) 178
Cal.App.4th 1260 (Katzenberger). In Katzenberger,
the prosecutor used a Power Point presentation in closing argument to
illustrate the reasonable doubt standard.
The presentation consisted of eight puzzle pieces forming the Statue of
Liberty. When the first six pieces came
on the screen, the prosecutor argued it was possible to know what was depicted
beyond a reasonable doubt. (
was misconduct. (Katzenberger, supra, at p. 1268.)
We found two
problems with the use of jigsaw puzzle presentation. First, it suggested the reasonable doubt
standard could be met by a few pieces of evidence, inviting the jury to guess
or jump to a conclusion; second, the argument improperly suggested a
quantitative measure of reasonable doubt.
(Katzenberger, supra, 178
Cal.App.4th at p. 1267.) “The
prosecutor’s use of an easily recognizable iconic image along with the
suggestion of a quantitative measure of reasonable doubt combined to convey an
impression of a lesser standard of proof than the constitutionally required
standard of proof beyond a reasonable doubt.â€
(Katzenberger, supra, at p.
1268.)
We find no
comparable problems with the use a jigsaw puzzle analogy here. The People were not arguing what amount of
evidence was sufficient to meet the reasonable doubt standard. Indeed, the People were not
statement. “The purpose of the opening
statement is to inform the jury of the evidence the prosecution intends to
present, and the manner in which the evidence and reasonable inferences relate
to the prosecution’s theory of the case.
[Citation.]†(
137.) “The function of an opening
statement is not only to inform the jury of the expected evidence, but also to
prepare the jurors to follow the evidence and more readily discern its
materiality, force, and meaning.†(
518.)
In its opening statement,
the People may properly predict that the evidence presented at trial will show
the defendant is guilty. Here, the
prosecutor did not invite the jury to jump to conclusions, but stated only what
he believed the evidence would show--a completed picture of what happened. Moreover, the trial court repeatedly
admonished the jury about the importance of keeping an open mind until the
conclusion of the evidence.
Defendant next
contends the analogy improperly compared the jury’s deliberative process to
the everyday activity of completing a jigsaw puzzle. “The judgment of a reasonable man in the
ordinary affairs of life, however important, is influenced and controlled
by the preponderance of evidence.
. . . But in the decision of a criminal case involving life
or liberty, something further is required.â€
(People v. Brannon (1873) 47
Cal. 96, 97.) Courts have “strongly
disapproved arguments suggesting the reasonable doubt standard is used in daily
life to decide such questions as whether to change lanes or marry.†(People
v. Nguyen (1995) 40 Cal.App.4th 28, 36.)
“A prosecutor’s
conduct violates the Fourteenth Amendment to the federal Constitution when it
infects the trial with such unfairness as to make the conviction a denial of
due process. Conduct by a prosecutor
that does not render a criminal trial fundamentally unfair is prosecutorial
misconduct under state law only if it involves the use of deceptive or
reprehensible methods to attempt to persuade either the trial court or the
jury.†(People v. Morales (2001) 25 Cal.4th 34, 44.) “[W]hen the claim focuses upon comments made
by the prosecutor before the jury, the question is whether there is a
reasonable likelihood that the jury construed or applied any of the complained-of
remarks in an objectionable fashion.
[Citation.]†(
841.)
Here, it is not
reasonably probable that the jury understood the People’s opening statement to
compare jury deliberations on the question of guilt to the everyday act of
doing a puzzle or to signal that the reasonable doubt standard is one applied
to everyday affairs. In the remainder of
his opening statement, the prosecutor outlined what the witnesses would testify
to and ended with, “at the conclusion of this case, I am going to ask you to
hold him accountable for what he did that night.†There was no mention of the reasonable doubt
standard. There was no misconduct.
Assistance of Counsel
We need not
consider defendant’s claim of ineffective assistance of counsel because we have
found no prosecutorial misconduct.
“Trial counsel is not required to make futile objections, advance
meritless arguments or undertake useless procedural challenges merely to create
a record impregnable to assault for claimed inadequacy of counsel.†(People
v. Jones (1979) 96 Cal.App.3d 820, 827.)
II
Defendant contends
the trial court erred in instructing the jury it could consider defendant’s
flight as consciousness of guilt.
name="_ftnref2" title="">[2] At trial, defense counsel objected to the
instruction, contending there was no evidence of flight as defendant merely
walked away while others were dispersing.
In
189, at page 199, the court stated: “The
fact that the perpetrators fled the scene of the crime cannot warrant an
instruction on flight where identity is a contested issue.†In People
v. Batey (1989) 213 Cal.App.3d 582 (Batey),
this court found that statement dictum and declined to follow it. Instead, we held: “A flight instruction is
appropriate where there is substantial evidence of flight by the defendant
apart from his identification as the perpetrator.†(Batey,
supra, 213 Cal.App.3d at p. 587.)
Relying on Batey, defendant
contends that here there was no evidence of defendant’s flight apart from his
identification as the one who stabbed Knaules.
Our Supreme Court
has rejected the rule that a flight instruction is error when identity is a
contested issue, disapproving Anjell and
its progeny on this point. (
943, fn. 13 (Mason).) “If there is evidence identifying the person
who fled as the defendant, and if such evidence ‘is relied upon as tending to
show guilt,’ then it is proper to instruct on flight.†(Mason,
supra, 52 Cal.3d at p. 943.)
In general, a
flight instruction “is proper where the evidence shows that the defendant
departed the crime scene under circumstances suggesting that his movement was
motivated by a consciousness of guilt.
[Citations.]†(
313, 345.) There was such evidence
here. Marinovich testified he saw
defendant, in the black jacket and bomber hat, sprint or jog towards Watt
Avenue. Conroy testified defendant and
his companion were walking away quickly, but they were trying to appear
casual. Under the instruction, the jury
was permitted to decide if there was evidence of flight, and if so, what weight
to give that evidence. (
1005, 1055.) There was no error in so
instructing.
III
Booking and Jail Classification Fees
Defendant contends
the trial court erred in imposing criminal justice administration fees without
a finding of an ability to pay or that the fees reflected actual costs.
At sentencing,
defendant (through counsel) asked the trial court to impose the minimum
restitution fine of $200, given his lengthy prison sentence. The trial court declined. Instead, it followed the statutory formula
and fixed the restitution fine at $1,000, stating: “I find that he is able to pay the fine out
of prison earnings. He is
able-bodied.†Defendant does not
challenge the restitution fine or the finding of his ability to pay it.
The court then
imposed other fines and fees without objection by defendant. On appeal, defendant challenges two: the $287.78 main jail booking fee and the
$59.23 main jail classification fee. He
contends the trial court failed to make a finding that he had the ability to
pay these fees and failed to find the amounts reflected the actual administrative
costs.
The parties
disagree under what statutory authority these fees were imposed as the trial
court did not cite any statutory bases.
The probation report cited to Government Code section 29550.2.
statute is Government Code section 29550 and under subdivisions (c) and (d) of
that statute, the fees were discretionary and did not require a finding of an
ability to pay.
title="">[4] In response, defendant raises an equal
protection claim for the first time in his reply brief.
We decline to
reach any of these disputed issues, because we hold any challenge to the amount
of these fees and the sufficiency of the evidence of defendant’s ability to pay
them has been forfeited by defendant’s failure to object below. This court has previously held that if a defendant
does not object in the trial court to the imposition of a fee or fine, the
issue is forfeited. (
368, 371 [crime prevention fine—Pen. Code, § 1202.5, subd. (a)];
1348, 1357 [jail booking fee—Gov. Code, § 29550.2]; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468–1469 (
former § 13967, subd. (a).) We have
applied the forfeiture rule even when the defendant claims on appeal that there
is not sufficient evidence to support the imposition of the fine or fee. (Gibson,
supra, 27 Cal.App.4th at pp. 1468–1469.)
The Sixth
Appellate District, however, has concluded that appeals challenging the
imposition of fines and fees based on claims of insufficient evidence “do not
require assertion in the court below to be preserved on appeal.†(People
v. Pacheco (2010) 187 Cal.App.4th 1392, 1397, citing People v. Viray (2005) 134 Cal.App.4th 1186, 1217.) This issue is currently before the California
Supreme Court. (See People v. McCullough (2011) (formerly at) 193 Cal.App.4th 864,
review granted on June 29, 2011, S192513.)
Until our Supreme
Court issues further guidance, we continue to adhere to our holding in
or fine in the trial court forfeits the right to contest the fee or fine on
appeal, even where the statute contemplates a judicial finding of ability to
pay and the defendant challenges the sufficiency of the evidence to support
such a finding. (Gibson, supra, 27 Cal.App.4th at pp. 1467, 1468–1469.) “As a matter of fairness to the trial court,
a defendant should not be permitted to assert for the first time on appeal a
procedural defect in imposition of a restitution fine, i.e., the trial court’s
alleged failure to consider defendant’s ability to pay the fine. [Citation.]
Rather, a defendant must make a timely objection in the trial court in
order to give that court an opportunity to correct the error; failure to object
should preclude reversal of the order on appeal.†(Gibson,
supra, at p. 1468.) Requiring an
objection in the sentencing court imposes no undue burden on defendant who was
given notice of the fees in the probation report and judicial economy demands
application of the forfeiture rule. (
Defendant’s
failure to raise the issue of his ability to pay or the justification of the
amount of the main jail classification fee and main jail booking fee in the
trial court precludes review for the first time on appeal.
DISPOSITION
The judgment is
affirmed. The trial court is directed to
prepare an amended abstract of judgment that includes the statutory bases for
all imposed fines and fees, and to forward it to the California
Rehabilitation.
DUARTE , J.
We concur:
RAYE , P. J.
HULL , J.
name="_ftn1" title="">[1] There was conflicting evidence presented as
to whether Conroy realized on his own he had first detained the wrong suspect
or whether Marinovich told Conroy he had the wrong man. This detail is not material to our analysis.
name="_ftn2" title="">[2] The instruction reads: “If the defendant tried to flee immediately
after the crime was committed, that conduct may show that he was aware of his
guilt. If you conclude that the
defendant tried to flee, it is up to you to decide the meaning and importance
of that conduct. However, evidence that
the defendant tried to flee cannot prove guilt by itself.â€
