Opinion
G031187.
11-13-2003
In re ELIZABETH BORUNDA on Habeas Corpus.
Carl C. Holmes, Public Defender, Deborah A. Kwast, Chief Deputy Public Defender, and Kevin J. Phillips and Bernard L. November, Deputy Public Defenders, for Petitioner. Tony Rackauckas, District Attorney, and Scott G. Scoville, Deputy District Attorney, for Respondent.
A jury found petitioner, Elizabeth Borunda, guilty of petty theft and petty theft with a prior conviction as misdemeanors. Borunda contends she was denied a fair trial based on an improper admonition to the jury. Petition denied.
FACTS
While watching surveillance monitors at a Neiman-Marcus department store, loss prevention investigator Lisa Naughton saw Elizabeth Borunda look around the store, select four pairs of underwear and two brassieres, and stuff them inside a big canvas bag. On the same occasion, Shawn Malone, also working as a loss prevention agent for Neiman-Marcus, saw Borunda take a sunglasses case, which he stated cost around $20. Before Borunda left the store, neither Naughton or Malone saw Borunda pay for the merchandise. When Borunda left the store, she encountered Naughton, who was already waiting outside the store to confront her about the stolen merchandise. Naughton recovered the underwear, brassieres, and the sunglasses case from Borunda, all property identified as belonging to Neiman-Marcus. The total price of the items taken was $593, and no receipt for the items was found on Borunda. While Borunda was detained in the Neiman-Marcus security department, Officer Garrity of the Newport Beach Police Department searched her car and found, among other things, "religious-type books about saints and stuff like that."
After Borunda was advised of her Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), she told the officer she has been a saint since she was three years old. Borunda also informed the officer she knew she was a saint because an evil man was not able to touch her. Borunda also explained she is supposed to have the items for free because she is a saint.
At trial, Borundas father testified that in March, approximately five months before Borundas arrest in August on this case, he found his daughter filthy and dazed in bushes repeating, "Im waiting for the answer." Mr. Borunda also stated that approximately three months later in June, he picked up his daughter from the psychiatric ward at Valley Hospital in Las Vegas.
After interviewing Borunda, reviewing information from the Newport Beach Police Department, and Valley Hospital records, forensic psychologist Dr. Roberto Flores DeApodaca testified he agreed with Valley Hospitals diagnosis that Borunda suffers from a delusional disorder, which causes her to believe she is a saint.
The videotape of the store surveillance cameras showing Borunda taking the store merchandise was viewed by the jury, and it found her guilty of petty theft and petty theft with a prior conviction. Borunda appealed, and framed the issues on appeal as, "Was the trial courts admonishment to the jury regarding appellants statements error?" and, "Was the trial courts refusal to give claim of right special instructions (1 through 5) a denial of appellants right to present a defense?"
The appellate division of the superior court held oral argument and affirmed the judgment without issuing a written opinion. Borundas request for certification to this court was denied, and she filed a petition for a writ of habeas corpus claiming the trial courts admonition to the jury denied her a fair trial.
The admonition challenged in this case occurred during the Peoples case-in-chief. Naughton was the first witness called by the People and during cross-examination, counsel asked Naughton if she asked Borunda why she had taken the merchandise. The People objected, and counsel explained the testimony was offered for Borundas "[s]tate of mind. Its a specific intent crime."[] Before Naughton could answer the question, the court stated, "Im going to admonish the jury about something. The mere fact that somebody said something that indicates that they were thinking of [something] other than a theft does not necessarily mean thats true. Do you understand that people can make up all these kinds of stories? Im going to allow it within [sic] that admonition."[]
Theft by larceny is defined as, "Every person who steals, takes, carries, leads, or drives away the personal property of another with the specific intent to deprive the owner permanently of [his] [her] property is guilty of the crime of theft by larceny." (CALJIC No. 14.02; Pen. Code, § 484.)
Based on the reporters transcript of the pretrial motions dated December 12, 2001, the court was aware of Borundas defense that she was delusional at the time of the offense.
At the conclusion of Naughtons testimony and out of the presence of the jury, counsel complained about the courts admonition, which she interpreted to imply that the jury did not have to believe Borunda was delusional at the time of the offense. The next trial day, counsel made a motion for a mistrial which was denied. Borunda complains the courts admonition denied her a fair trial and the appellate division should be ordered to recall its remittitur, vacate the judgment, and conduct a new trial.
DISCUSSION
Article VI, section 10, of the California Constitution permits a judge to comment on the evidence in a case, and states, "The court may make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the cause." "On its face, the constitutional language imposes no limitations on the content or timing of judicial commentary, deferring entirely to the trial judges sound discretion." (People v. Rodriguez (1986) 42 Cal.3d 730, 766.) However, "a judge should be cautious to exercise the constitutional power to comment with wisdom and restraint and with a view to protecting the rights of defendant." (People v. Shannon (1968) 260 Cal.App.2d 320, 331.)
"[A]ppellate courts have recognized . . . this powerful judicial tool may sometimes invade the accuseds countervailing right to independent jury determination of the facts bearing on his guilt or innocence," (People v. Rodriguez, supra, 42 Cal.3d at p. 766) and as such, any comment by the court "must be accurate, temperate, nonargumentative, and scrupulously fair." (Ibid.) Likewise, the courts comment should not "withdraw material evidence from the jurys consideration, distort the record, expressly or impliedly direct a verdict, or otherwise usurp the jurys ultimate factfinding power." (Ibid.) On review, appellate courts "`evaluate the propriety of judicial comment on a case-by-case basis, noting whether the peculiar content and circumstances of the courts remarks deprived the accused of his right to trial by jury. [Citation.] The propriety and prejudicial effect of a particular comment are judged both by its content and by the circumstances in which it was made. [Citation.] (People v. Sanders (1995) 11 Cal.4th 475, 531-532.) "[N]o hard and fast rule determinative of what a trial judge may or may not say to a jury in commenting on the evidence and the credibility of witnesses can be laid down. What particular comment should be or should not be made in a criminal case depends upon the nature of the charge, the nature of the evidence and to some extent on arguments of counsel [citations]; and whether a trial judges comment on testimony and the credibility of witnesses has gone beyond judicial discretion is to be determined upon all of the circumstances of the case." (People v. Shannon, supra, 260 Cal.App.2d at p. 330.)
We find the following cases instructive. In People v. Shannon, supra, 260 Cal.App.2d 320, 332-333, the court held the trial courts lengthy commentary on the evidence was argumentative and unnecessary for either a proper determination of the case, or to assist the jury, because the evidence was overwhelming and undisputed. The judgment was affirmed and the court held the defendant was not prejudiced by the courts unnecessary remarks for the very same reason that the evidence was so overwhelming and undisputed. (Id. at p. 333.) In People v. Stewart (1983) 145 Cal.App.3d 967, 977, the defendant complained the courts comments bolstered the credibility of the accomplice testifying against him and therefore limited his attempts to impeach the witness. In addition to the improper comments made by the trial court, the judgment was reversed because the court limited cross-examination of a witness on a material issue, and failed to advise the jury that the courts comments were personal opinion. (Id. at pp. 978-979.) In People v. Moore (1974) 40 Cal.App.3d 56, 64, the trial court summarized the evidence in an effort to encourage the jury to reach a quick verdict. The court held the trial courts summary of the evidence did not constitute an accurate statement of the record and omitted critical evidence favorable to the defendant. (Id. at p. 65.) As a result, the court found the trial court usurped the jurys function to such an extent that the defendant was effectively deprived of his right to a jury trial and the judgment was reversed. (Id. at p. 67.) In People v. Terry (1970) 2 Cal.3d 362, 398, overruled on another point in People v. Carpenter (1997) 15 Cal.4th 312, 382, the trial court made remarks minimizing the significance of psychiatric testimony, on which the defendant heavily relied. The court held the remarks were ambiguous and the issue waived because an admonition could have clarified the ambiguity. In People v. Smith (1968) 267 Cal.App.2d 155, 163, the court held it was proper for the trial court to express an opinion on the guilt or innocence of the defendant, but only if there was an evidentiary basis for the courts comments and it is explained to the jury. In People v. Rodriguez, supra, 42 Cal.3d 730, 765, after the jury announced they were deadlocked on the guilt phase of a murder trial, the trial court commented on the evidence by referring to the testimony of a defense witness. The court overruled People v. Cook (1983) 33 Cal.3d 400, and held there is no constitutional limitation on when the court may comment on the evidence. (Id. at p. 766.)
In this case, Borunda contends the courts admonition discredited her defense by implying her delusional behavior may have been fabricated. Under the circumstances, and in the context of the hearsay objection, the courts admonition to the jury was improper for two reasons. First, the admonition was unrelated to the courts evidentiary ruling permitting Naughton to testify to Borundas state of mind. An appropriate admonition from the court would have been to either recite or explain Evidence Code section 1250, which explains the state of mind exception, and CALJIC No. 2.09, which states evidence may be admitted for a limited purpose and should not be considered for any purpose "except the limited purpose for which it was admitted."[] The admonition the court should have given, if any, was to explain to the jury that Borundas statement was not admitted to demonstrate the truth of the statement, that she is in fact a saint and God spoke to her, but only for the limited purpose to demonstrate her state of mind (delusional or not delusional) at the time she took the merchandise. Instead, without analysis, explanation or legal support, the court advised the jury that "people can make up all these kinds of stories."
Evidence Code section 1250 states: "(a) Subject to Section 1252, [Circumstances indicating lack of trustworthiness] evidence of a statement of the declarants then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarants state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant."
CALJIC No. 2.09 (6th ed. 1996) states in full: "Certain evidence was admitted for a limited purpose. [¶] At the time this evidence was admitted you were instructed that it could not be considered by you for any purpose other than the limited purpose for which it was admitted. [¶] Do not consider this evidence for any purpose except the limited purpose for which it was admitted."
Second, the admonition unfairly discredited Borundas state of mind defense before any evidence of the defense had been presented. In People v. Oliver (1975) 46 Cal.App.3d 747, (hereafter Oliver), the defendant was charged with robbery and several witnesses testified on his behalf. Although they were not true alibi witnesses, they accounted for most of his time, so that if the witnesses were believed, it was unlikely the defendant was involved in the robbery. While reading the instructions to the jury, the court stated he had "never in [his] experience as a lawyer and a judge seen an array of witnesses whose credibility is so doubtful." (Id. at p. 750.) On review, the court stated the comment was "both unfair and unjustified," because the evidence revealed that the minor discrepancies in the testimony of the defense witnesses were similar to the discrepancies of the prosecution witnesses. (Id. at p. 753.) The court in Oliver held, "[a]n expression by the judge of his opinion that defendant and all of the defense witnesses were not worthy of belief without stating any reason and without a discussion of any evidentiary basis allows the jurors to discredit and disbelieve such witnesses without determining the question of credibility in accordance with proper instructions. [Citation.] Where, as here, the entire case hinged upon the credibility to be afforded the witnesses, such a comment was tantamount to a directed verdict of guilty." (Ibid.)
In this case, as in Oliver, the court made critical remarks about the credibility of the defense. Compounding the courts decision to give the admonition in this case is the fact that at the time the court gave the admonition, there was no evidentiary or factual basis to justify the courts remarks because no evidence had been presented to the jury regarding Borundas state of mind.
In cases where the court either properly or improperly comments on the evidence, any error may be cured if the court makes clear its comments were only advisory and not binding on the jury. "In analyzing the context in which a trial judge has commented upon the evidence it is important to determine whether or not the court made clear to the jury that its views were `not binding but advisory only. [Citation.] CALJIC No. 17.32 was specifically designed to delineate for the jurors those statements which are simply the judges advisory opinion and the areas in which the jury is to be the ultimate finder of fact." (People v. Stewart, supra, 145 Cal.App.3d at 978.)[] After reviewing the superior court file and requesting supplemental briefing, the parties agree CALJIC No. 17.32 was not discussed by the court or the parties. In fact, neither party knows whether the instruction was requested, and they both agree, and the superior court file confirms, CALJIC No. 17.32 was "refused" by the court.[]
CALJIC No. 17.32 (6th ed. 1996) states in full: "I have not intended by anything I have said or done, or by any questions that I may have asked, to suggest what you should find to be the facts, or that I believe or disbelieve any witness. [¶] If anything I have done or said has seemed to so indicate, disregard it and form your own conclusion. [& para;] At this time, however, and for the purpose of assisting you in properly deciding the case, I will comment on the evidence and the testimony and believability of any witness. [¶] My comments are intended to be advisory only and are not binding on you as you must be the exclusive judges of the facts and of the believability of the witnesses. [¶] You may disregard any or all of my comments if they do not coincide with your views of the evidence and the believability of the witnesses." (Evid. Code, § 355.)
It should be noted that although CALJIC No. 17.32 was not given, the record indicates the court read CALJIC No. 17.30 to the jury which states, "I have not intended by anything I have said or done, or by any questions that I may have asked, or by any ruling I may have made, to intimate or suggest what you should find to be the facts, or that I believe or disbelieve any witness. [¶] If anything I have done or said has seemed to so indicate, you will disregard it and form your own conclusion."
"Generally, `"a defendant may not complain on appeal of [ ] misconduct unless in a timely fashion — and on the same ground — the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety." [Citation.] This general rule, however, does not apply if a defendants objection or request for admonition would have been futile or would not have cured the harm caused by the misconduct[,] . . . [or] the defendant has no opportunity to request an admonition. [Citation.]" (People v. McDermott (2002) 28 Cal.4th 946, 1001.)
Because counsel failed to request CALJIC No. 17.32, we asked the parties to address whether any error by the court was waived by failing to request the instruction. (E.g., People v. Price (1991) 1 Cal.4th 324, 446-447; People v. Dennis (1998) 17 Cal.4th 468, 517-518.)
As previously mentioned, Borunda initially complained to the court about the admonition to the jury, however, she did not seek a remedy for the error. She later made a motion for a mistrial which was denied, but still never requested an instruction to cure any potential error by the court. Nevertheless, Borunda contends her failure to request CALJIC No. 17.32 should be excused because: 1) since the court "refused" to give the instruction, it would have been pointless to request the instruction; 2) her objection and request for a mistrial alerted the court to the error and must have been the reason CALJIC No. 17.32 was included as one of the potentially relevant instructions the court considered giving to the jury; 3) the courts comment "was a blunder of constitutional proportions, and could not have been remedied by the giving of CALJIC [No.] 17.32"; 4) "even if the error arguably could have been cured by the giving of CALJIC [No.] 17.32, it would not have been cured;" and 5) even if the court finds counsel waived the right to challenge the courts comment, this court may nevertheless address the matter "in order `[t]o forestall any later charge of ineffective assistance of counsel . . ."[]
We specifically decline counsels invitation to consider any new issues, especially a claim of ineffective assistance of counsel, in view of the fact that current counsel also represented petitioner in the trial court and on appeal, and consideration may preclude any further review. (In re Clark (1993) 5 Cal.4th 750, 767-768.)
Based on the facts in this case, Borunda has failed to demonstrate that any of the exceptions to the waiver rule apply. We also disagree with her reasons for failing to request the instruction. Theres no indication in the record that she requested the instruction or that the court would not have been amenable to giving the instruction had it been requested. We also disagree the error is of constitutional proportion that could not have been remedied since CALJIC No. 17.32 is specifically intended for these circumstances when the court comments on the evidence or credibility of witnesses. Whatever prejudicial impact the courts remarks may have had on the jury would have been mitigated had the instruction been requested and given.
Even if we found the error had not been waived, the petition must still be denied. The fact that this case is presented to this court by way of a petition for a writ of habeas corpus after judgment was affirmed on appeal, requires that we follow the dictates and limitations set forth in In re Harris (1993) 5 Cal.4th 813, which holds that a petition for a writ of habeas corpus will "`not lie . . . as a second appeal." (Id. at p. 826.)
"`Fundamental jurisdictional defects, like constitutional defects, do not become irremediable when a judgment of conviction becomes final, even after affirmance on appeal. [Citation.] However, the petitioner must show that the defect so fatally infected the regularity of the trial and conviction as to violate the fundamental aspects of fairness and result in a miscarriage of justice. [Citation.]" (In re Harris, supra, 5 Cal.4th at pp. 825-826.) "Unlike review on direct appeal, habeas corpus does not simply inquire into the correctness of the trial courts judgment. The scope of habeas corpus is more limited[] [and] . . . it will reach out to correct errors of a fundamental jurisdictional or constitutional type only. [Citation.]" (In re Harris, supra, 5 Cal.4th at p. 828.)
A showing of a violation of a constitutional issue alone is insufficient. "Only where the claimed constitutional error is both clear and fundamental, and strikes at the heart of the trial process, is an opportunity for a third chance at judicial review (trial, appeal, postappeal habeas corpus) justified. (Cf. Arizona v. Fulminante (1991) 499 U.S. 279, 309) [only errors amounting to a structural defect in the trial mechanism are deserving of automatic reversal rule].)" (In re Harris, supra, 5 Cal.4th at p. 834.)
Circumstances which have been determined to be a clear and fundamental constitutional error which strike at the heart of the trial process include a total deprivation of the right to counsel at trial (Gideon v. Wainwright (1963) 372 U.S. 335); biased judge who had a pecuniary interest in the resolution of the case (Tumey v. Ohio (1927) 273 U.S. 510); unlawful exclusion of members of the defendants race from a grand jury (Vasquez v. Hillery (1986) 474 U.S. 254); the right to self-representation at trial (McKaskle v. Wiggins (1984) 465 U.S. 168); and the right to a public trial (Waller v. Georgia (1984) 467 U.S. 39). "Each of these constitutional deprivations is a similar structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself. `Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair." (Arizona v. Fulminante, supra, 499 U.S. at p. 310.)
Pursuant to Fulminante, only a structural error, i.e., one that affects the framework within which the trial proceeds and, therefore, defies harmless error analysis, is reversible per se. (Arizona v. Fulminante, supra, 499 U.S. at pp. 303-310.) In this case, any error from the courts comment was confined to the weight to give to Borundas claim that she was delusional at the time of the offense. Error which occurs during the presentation of the case and may be quantitatively assessed in the context of other evidence to determine its prejudicial effect, as in this case, is "trial error," not a structural defect, and subject to harmless error analysis. (Id. at pp. 307-308; People v. Melton (1988) 44 Cal.3d 713, 735.)
DISPOSITION
For the foregoing reasons, the petition is denied.
WE CONCUR: SILLS, P. J. and MOORE, J.