Opinion
A125674
08-15-2011
THE PEOPLE, Plaintiff and Respondent, v. JARED LACEY ADAMS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. 159035A)
I. INTRODUCTION
A jury convicted defendant Jared Lacey Adams of attempted murder, assault with a semiautomatic firearm, second degree robbery, shooting at an occupied building, shooting at an occupied vehicle, evading a police officer, and multiple counts of unlawfully taking a vehicle and carjacking. The jury also found true multiple enhancements including personal and intentional discharge of a weapon causing great bodily injury pursuant to Penal Code section 12022.53, subdivision (d). The court sentenced defendant to an aggregate term of 70 years to life.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant contends both the prosecutor and trial court committed numerous acts of misconduct that were individually and cumulatively prejudicial, requiring reversal. We conclude either no misconduct occurred, or if it did, it was not prejudicial, and therefore affirm the judgment.
II. BACKGROUND
The charges were based upon a series of crimes committed between December 28, 2007 and January 10, 2008.
Herbert Howell's Camaro and Brandon Summer's Chevelle
On December 28, 2007, Herbert Howell and Brandon Summers drove in Howell's Camaro to the Hamlet apartment complex, where Summers lived. Summers noticed his Chevelle was not in the spot where he had last parked it. His uncle, Frank Rogers, joined Summers and Howell outside and told Summers he had heard the distinctive sound of the Chevelle engine and had come out to investigate. They walked over to where the Chevelle was now parked and saw a man sitting in the driver's seat. Just then, another car pulled up behind Summers. A man in the car pointed a gun at Summers and Rogers and said: " 'What do you want to do now, mother fucker?' " The man fired three shots; Summers, Rogers, and Howell ran for shelter behind a parked car. The man who had been in the driver's seat of Summers's Chevelle jumped into Howell's now commandeered Camaro, and both men drove away.
The white Buick belonging to Donald Campbell was recovered at the scene. On January 2, 2008, a patrol officer found Howell's Camaro parked on Bartlett Street, recognized it as one listed on the "hot sheet," and had it towed.
Donald Campbell's Buick
On December 29, 2007, Donald Campbell discovered his Buick Le Sabre was not parked where he had parked it the night before. The police later found the Buick in front of the Hamlet apartment complex in San Leandro.
Senator Don Perata's Charger
On December 29, 2007, Senator Don Perata (Ret.) pulled out of a gas station in Oakland, drove down Broadway, and eventually turned onto Shattuck Avenue. A surveillance camera from a nearby gas station showed that when Perata stopped at a red light, a gold Camaro pulled up behind him. Several witnesses saw a man exit the passenger side of the Camaro and approach the driver's side of the Charger with a gun.
Senator Perata testified a man approached him with a gun while pulling on a ski mask. Perata complied with a demand that he exit the vehicle. The man with the gun got into the driver's seat of the Charger and drove away, closely followed by the gold Camaro.
Later that day, a police officer found the Charger in a remote area of Richmond on Collett Street. An expert witness testified a latent print on the interior of the vehicle matched defendant's left index finger.
Higareda's Mustang and Beyes's .40-Caliber Gun
On January 6, 2008, Victor Higareda's classic Mustang was driven away without his permission. The Mustang was recovered after defendant drove it to the scene of the gas station robbery and attempted murder, and crashed it in the get-away chase that followed. According to Higareda it was "totaled."
On January 9, 2008, Benjermen Beyes returned home to find the front door open and the house ransacked. The items taken included a TV, jewelry, and a .40-caliber gun.
Robbery, Attempted Murder, and Shooting of Bystander
On January 10, 2008, Nader Sepehr and Tejpal Singh were on duty at a gas station on the corner of Piedmont Avenue and Pleasant Valley in Oakland. A man, who Sepehr later identified as defendant, approached Sepehr from behind. As Sepehr turned to see who was approaching, the man pulled a ski mask over his face and pulled out a gun. He then pulled Sepehr into the office and demanded money. Sepehr called out to Singh, telling him "somebody is with gun. He need the money."
At trial, Sepehr tentatively identified defendant, but Sergeant Nolan testified Sepehr positively identified him in a hospital show-up before trial.
When Singh emerged from the car wash area, defendant turned and pointed the gun at him. Singh retreated to the back of the car wash tunnel. Sepehr handed defendant $166 in cash.
In the meantime, Singh was trying to call 911. Defendant saw Singh, pointed the gun at him and fired three times. Singh dropped down to take cover.
Defendant missed Singh, but two of the bullets hit a vehicle parked in front of a music school across the street. Jennifer R. was inside the vehicle waiting for her son, Christopher R., to finish his music lesson. The other bullet went through a wall of the music school, hitting Christopher in the abdomen and causing extensive damage, including severance of the spinal cord and permanent paralysis.
Officers Huppert and Cardoza heard the shots and responded immediately. Sepehr followed defendant and saw him get into a Mustang and start driving away with the driver side door still open. Other witnesses also pointed out a Mustang speeding away.
After a prolonged and dramatic car chase during which defendant crashed into another vehicle, defendant finally exited the Mustang and tried to escape on foot. Officer Cardoza eventually tackled him. Defendant had a ski mask around his neck and $162 in his pocket. He told Cardoza he had to commit the robbery, and added he had some information and wanted to work out a deal. Defendant was placed under arrest and taken to the hospital.
In the meantime, Officer Kemmitt found Maeve Clifford sitting in the passenger seat of the Mustang and arrested her. Kemmitt also found a .40-caliber gun lying on the passenger side floor.
Mark Bennett, a firearms expert, testified all three casings found at the scene were fired from the pistol recovered from the Mustang. He also testified a trigger-pull force of five pounds was necessary to fire a single action shot and eight and a half pounds was required for double action firing (meaning a shot fired without first cocking the hammer).
Maeve Clifford's Testimony
Clifford was defendant's girlfriend and a codefendant on some of the charges. She eventually pleaded guilty to armed robbery and to being an accessory after the fact to carjacking Senator Perata's Charger. Pursuant to the terms of the plea, she agreed to testify truthfully in this case.
During the relevant time frame between Christmas and New Year's, she saw defendant driving a white Buick that did not belong to him. He called it a "scraper," meaning it was an older car that was easy to steal. One night defendant and Ryan McGough, also known as "Erk," drove the white Buick to San Leandro to steal "an old-school car." As defendant and McGough were leaving, defendant asked McGough if he had the gun. McGough confirmed he had it, and Clifford saw him with it.
The next morning defendant told her the "old-school car" would not start, but "[McGough] had his back and they ended up . . . carjacking the Camaro and coming home." McGough said they had to fire off a few rounds.
The next Saturday morning, Clifford was home when defendant left with McGough to go to Montclair. Defendant had a gun that belonged to McGough's cousin. When they returned around 5 p.m., defendant told her McGough provoked him by complaining he had not been stealing enough cars. Defendant responded by grabbing the gun while they were stopped at a stop light and carjacking "an old White guy" in a "red charger" with 22-inch rims. She helped defendant discard the Charger once they realized it belonged to Senator Perata.
On January 9, 2008, when Clifford returned home from work, defendant showed her a laptop computer, a TV, and a black gun with a clip. Defendant told her he and McGough took the items from a house in Oakland.
Maeve Clifford made a statement on January 29, 2009, that defendant showed her the gun and told her he took it in a burglary along with a TV. This information was consistent with the Beyes burglary report.
On January 10, 2008, Clifford went driving with defendant in a Mustang, which he had started by using a drill bit. Defendant gave her a loaded .40-caliber gun and told her to put it under the seat. He said he needed to get a ski mask, and they went together to purchase one. Defendant had been drinking wine in the morning and also drank a 40-ounce bottle of beer while they were driving and looking for a gas station to rob. At one point, he stopped to get another bottle of beer because he said he "wasn't drunk enough."
Benjermen Beyes identified the .40-caliber firearm found in the Mustang after the gas station robbery as the one stolen from him.
Ultimately, they targeted the gas station on 51st and Piedmont Avenue. Defendant parked the Mustang a half block away. He got out and said "he was going to hit the gas station." He asked Clifford for the gun, and she handed it to him. Her role was to send defendant a text message if she saw a police car, or anyone else approach.
Shortly, Clifford heard three shots and saw defendant running toward the car. He threw the gun on the floor and started to drive away. He drove off at a high rate of speed headed for the freeway. They were going approximately 60 miles per hour when they hit another vehicle. She passed out and woke up to find a police car by the driver-side door. Defendant fled on foot. She was arrested.
Defense Case
The defense focused only on the attempted murder and the enhancements for intentionally discharging a firearm resulting in the paralysis of Christopher R. The defense relied primarily on evidence of voluntary intoxication to raise a reasonable doubt that defendant had the requisite intent to kill for the attempted murder, and to persuade the jury he did not intentionally fire his weapon.
Defendant testified on his own behalf and admitted committing nearly every offense with which he was charged. He admitted he stole Don Campbell's Buick. He testified he and McGough drove the Buick to San Leandro to steal the Chevelle. He got into the Chevelle and moved it, but was unable to unlock the steering wheel. When people approached the Chevelle, defendant heard shooting, got out and ran. He saw McGough driving a Camaro, got in and they drove away together. Defendant also admitted he was the man who took Perata's Charger at gun point.
Defendant even admitted he was the man with the gun who committed the robbery at the gas station. But he claimed to have no memory of shooting at Singh or intentionally firing the shots that hit Christopher R., the music school, and the vehicle occupied by Christopher R.'s mother. Defendant testified that on January 10, 2008, he spent the day drinking with Clifford. He and Clifford had the opportunity to move into an apartment in Richmond, but did not have the $1,000 deposit. At approximately 3:00 p.m., he and Clifford got into the Mustang, went to buy a ski mask, and parked near the gas station. Defendant took money from Sepehr at gun point. As defendant was leaving, he saw someone kneeling down but he did not remember taking aim at him. Nor did he remember the gun firing.
After defendant was arrested, Officer Munoz ordered a blood-alcohol test because defendant smelled of alcohol, had slurred speech, bloodshot eyes and was unsteady on his feet. His blood-alcohol level was .23. A defense expert testified that a blood-alcohol level of .23 impairs sensory input, perception, and judgment.
III. DISCUSSION
A. Prosecutorial Misconduct
"The applicable federal and state standards regarding prosecutorial misconduct are well established. ' "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.' " ' [Citations.] 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.' " ' [Citation.] . . . [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." (People v. Samayoa (1997) 15 Cal.4th 795, 841 (Samayoa).)
Defendant contends the prosecutor committed multiple acts of misconduct. In most instances, his trial counsel failed to object and thus failed to preserve the claims of misconduct on appeal. (People v. Dykes (2009) 46 Cal.4th 731, 786.) Accordingly, with respect to these claims, defendant argues ineffective assistance of counsel (IAC). In light of this assertion, we exercise our discretion to review the waived claims on the merits. (People v. Ochoa (1998) 19 Cal.4th 353, 428; People v. Crittenden (1994) 9 Cal.4th 83, 146; see also People v. Jennings (2010) 50 Cal.4th 616, 654, fn. 15 [defendant may not "transform a forfeited claim into a cognizable claim merely by asserting [IAC]" but must establish IAC, which is a different analysis].)
People v. Crittenden, supra, 9 cal.4th 83, impliedly overruled on other grounds as stated in People v. Baldwin (2010) 189 Cal.App.4th 991, 999-1000.
Asserted Misconduct with Respect to Testimony of Maeve Clifford Terms of Plea
Defendant complains that the prosecutor asked Clifford to confirm she pleaded guilty to "being an aider and abetter to the robbery." Clifford did plead guilty to robbery, but nothing in the terms of the plea described her as an aider and abetter. Defense counsel therefore objected. The court overruled the objection, stating "[t]hat's what she pled to." Defendant contends the prosecutor's misstatement of the terms of the plea is misconduct because it left a false impression Clifford was not equally culpable and suggested the jury need not treat her as an accomplice when evaluating her credibility.
The prosecutor's initial misstatement of the terms of the plea did not constitute misconduct for two reasons. First, despite the overruling of defendant's objection, the prosecutor rephrased her question to eliminate the reference to "being an aider and abetter." She asked Clifford whether she "pled guilty to a violation of section 211 . . . which is robbery . . . ?" Clifford answered "[y]es." Second, there was no "reasonable likelihood" any juror understood the reference to Clifford as an aider and abetter to mean she was less culpable than a principal, or that Clifford's testimony was not subject to the same scrutiny as that of any other accomplice. The court also instructed the jury an aider and abetter is a principal, and that each principal "regardless of the extent or manner of participation" is equally guilty. The court further informed the jury Clifford was an accomplice "as a matter of law" with respect to all charged offenses relating to the gas station robbery and shooting, and as such her testimony was subject to the instructions requiring the jury find corroboration of her testimony, and to view her testimony with caution. In the absence of a "reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion," the prosecutor's initial reference to being an aider and abetter when describing the terms of the plea did not constitute misconduct. (See Samayoa, supra, 15 Cal.4th at p. 841.)
Plea Required Truthful Testimony
Defendant next contends the prosecutor committed misconduct by asking Clifford whether she understood one of the terms of the plea required her to testify truthfully, and that the agreed sentence was contingent upon her truthful testimony. During her rebuttal argument the prosecutor also stated "Ms. Clifford made a deal to testify. And as she told you . . . she knows what her sentence is going to be as a result of the deals she made. She knows what is going to happen to her. And her deal is contingent on telling the truth. So it was up to her to come in and tell the truth."
Defendant contends the prosecutor's disclosure of the truthful testimony plea term and the related argument amounted to vouching for Clifford's veracity based upon facts outside the record, or upon the prosecutor's personal assurance she had determined Clifford told the truth. (See People v. Cook (2006) 39 Cal.4th 566, 593 (Cook) [misconduct "to suggest that evidence available to the government but not before the jury corroborates the testimony of a witness"]; People v. Huggins (2006) 38 Cal.4th 175, 206-207 [misconduct to bolster case by invoking the prosecutor's personal prestige, reputation, or depth of experience, or the prestige of the prosecutor's office].)
This claim of prosecutorial misconduct is waived because defendant did not object to the disclosure of the "truthful testimony" terms of the plea or to the argument based upon it.
It also fails on the merits. In People v. Bonilla (2007) 41 Cal.4th 313, 334-336, the court held the prosecutor did not engage in improper vouching by referring to the truthful testimony terms of a plea in the prosecutors' opening statement. The court reasoned whenever an accomplice testifies for the prosecution, " ' "full disclosure of any agreement affecting the witness is required to ensure that the jury has a complete picture of the factors affecting the witness's credibility." ' " (Id. p. 337.) Merely arguing that a plea term requiring truthful testimony provides an incentive to tell the truth does not suggest the prosecutor has "personal knowledge of facts outside the record" showing the witness is in fact telling the truth. Nor does it invite "the jury to abdicate its responsibility to independently evaluate" the credibility of the witness. (Id. at pp. 337-338.) Instead, such argument urges a reasonable inference based upon evidence of the terms of the plea. (Ibid.)
A "truthful testimony" plea term cuts both ways. "[I]t suggests not only an incentive to tell the truth but also a motive to testify as the prosecutor wishes." (People v. Fauber (1992) 2 Cal.4th 792, 822.) When the prosecution advances the truthful testimony term of the plea as a reason to credit the witness, the defense is always free to argue it actually creates an incentive to say what the witness believes the prosecution wants to hear.
The federal cases defendant cites do not support a contrary conclusion. In United States v. Kerr (9th Cir. 1992) 981 F.2d 1050, 1053, the prosecutor repeatedly and "deliberately introduced into the case his personal opinion of the witnesses' credibility," and "added fuel to the fire by suggesting in his closing remarks that the district court, in accepting the plea agreements of the witnesses, had been satisfied as to the truthfulness of their proposed testimony." (Ibid.)By contrast here, the prosecutor merely urged a permissible inference—i.e., that Clifford had an incentive to testify truthfully. She prefaced her argument by expressly declining to express a personal opinion regarding the credibility of any witness, and reminding the jurors they are the sole judges of the credibility. Nor did the prosecutor say or do anything to suggest she, or the court, had independently verified Clifford's testimony.
In United States v. Monroe (9th Cir. 1991) 943 F.2d 1007 (Monroe), the court held "a reference to the 'truthful testimony' provisions of a witness's agreement with the government does not constitute vouching if it is made in response to an attack on the witness's credibility because of his plea bargain." (Id. at p. 1013.) Here, defense counsel attacked Clifford's credibility in opening argument as follows: "Up until a few weeks ago, Maeve Clifford was sitting right here beside [defendant]. She was a defendant in this very case. Up until a few weeks ago, Ms. Clifford was asking [defendant] to somehow exonerate her to get her out of the case. Once [defendant] could not do that, she took things into her own hands and she started saying, well, I heard this and I heard that." Although defense counsel did not explicitly refer to the plea, the clear implication of the argument was that Clifford's testimony should be discredited because, having failed to persuade defendant to "exonerate her," she became a witness for the prosecution to obtain some kind of similar benefit or leniency. It therefore was not misconduct for the prosecutor to rebut this attack on her credibility with evidence of the truthful testimony term of the plea or to argue this term gave Clifford an incentive to tell the truth. (Ibid.)
In Monroe the court also found reference to a truthful testimony term was harmless beyond a reasonable doubt because it was brief and nonrecurring and the jury was instructed to regard testimony of informer or immunized witness with caution. (Monroe, supra, 943 F.2d at p. 1014, fn. 7.) Similarly here the court instructed the jurors that they are the sole judges of credibility, that Clifford was an accomplice as a matter of law and as such her testimony should be viewed with caution and required corroboration.
Death of Clifford's Child
Defendant next asserts the prosecutor engaged in misconduct by arguing the death of Clifford's own child at the hands of the child's father was one of the factors motivating Clifford to testify for the prosecution. The prosecutor based this argument on Clifford's testimony that her daughter had been killed by the child's father. Clifford admitted she initially lied in this case to protect defendant, but after being incarcerated and taking some classes on drug and alcohol abuse she realized her protective behavior was part of a pattern of "codependency" arising in the context of "abusive relationships." This insight helped her decide to tell the truth in this case because "[a] little kid got hurt and that's something I definitely relate to."
Defendant contends the prosecutor's argument was misconduct because the prosecutor knew the court, pursuant to Evidence Code section 352, excluded defense evidence that Clifford lied about the cause of injuries to her baby on several occasions before the father finally killed the child. According to defense counsel's offer of proof, the excluded evidence would have shown Clifford twice lied to police about the cause of injuries to her child, telling them the child had fallen off a bed, when in fact the child had been beaten by the father. Defendant argues it was misconduct to obtain a ruling excluding this evidence and then make an argument regarding Clifford's motivation to testify for the prosecution that defendant could have contradicted with the excluded evidence.
This claim of misconduct also is waived because defendant did not object. It also fails on the merits.
Defendant relies on People v. Varona (1983) 143 Cal.App.3d 566 (Varona).In that case, two defendants contended the alleged rape victim was a prostitute who claimed she had been kidnapped and raped only when she learned the defendants had no money to pay for consensual acts. (Id. at p. 568.) The trial court excluded evidence the victim had been convicted of prostitution and was on probation for that offense at the time of trial. (Ibid.)On appeal, the defendants successfully challenged the evidentiary ruling. (Id. at p. 570.) The Court of Appeal further held the prosecutor committed misconduct by arguing the defense failed to introduce any evidence the victim was a prostitute, and by affirmatively asserting the victim was not a prostitute because the prosecutor had "seen the official records and knew that he was arguing a falsehood." (Ibid.)
Varona is distinguishable for two reasons: First, in Varona the appellate court premised the finding of misconduct on an "erroneous evidentiary ruling[] on which the prosecutor improperly capitalized during his closing argument." (People v. Lawley (2002) 27 Cal.4th 102, 156 [court distinguished Varona and limited its application to cases in which the prosecutor obtains and capitalizes on an erroneous evidentiary ruling].) Here, defendant does not even challenge the merits of the court's evidentiary ruling and, if he did, we would uphold it. The court weighed the relevant factors under Evidence Code section 352. It reasonably concluded introduction of the police reports would entail undue consumption of time litigating all of the circumstances of this unrelated incident including whether Clifford in fact lied and why. At the same time, the probative value was slight since this impeachment evidence was cumulative of other evidence that Clifford lied in this case about her own involvement and to protect defendant before she negotiated a plea and agreed to testify for the prosecution. Thus, defendant had other ample evidence to support the argument Clifford lied when it served her own interests, and that she was not testifying in this case because of some personal reformation and commitment to telling the truth but rather only to avoid more severe consequences for her own involvement in some of the charged offenses. It was therefore well within the court's discretion to exclude additional evidence offered to make the same point in a potentially more time consuming manner. (People v. Gutierrez (2009) 45 Cal.4th 789, 808 [court did not abuse discretion under Evidence Code section 352 by excluding evidence of improper contact between juror and witness to show the witness was biased where it was cumulative of other evidence of bias, would "cloud the issues," and involve undue consumption of time].)
The trial court explained its reasons for excluding the police reports based upon Evidence Code section 352 as follows: "[N]umber one, . . . [none] . . . of us know all the circumstances regarding what happened with [Clifford's] baby and the baby's father, whether she was also the subject of abuse which caused her not to tell the truth, whether threats had been made. There's all sorts of subissues that go along with that we have no way of knowing that makes cross-examination on her credibility as related to that subject to all sorts of speculation and assumptions. [¶] Number two, . . . you had plenty [of other examples of lying] to cross-examine . . . her" on with respect to her credibility. The court concluded the proffered evidence was more prejudicial than probative, could "confuse the jury" and involve undue consumption of time.
Second, unlike the prosecutor in Varona, the prosecutor in this case did not assert the existence of a fact she knew to be false when she argued that one of Clifford's motivations to testify for the prosecution was the murder of her own child and her realization she should not lie to protect an abusive boyfriend. (See Varona, supra, 143 Cal.App.3d at p. 570.) Clifford's own testimony amply supported the prosecutor's argument. Even if the excluded police reports did show that Clifford lied regarding the cause of injuries to protect the father of her baby such evidence did not demonstrate the prosecutor's statement regarding Clifford's motivation was false. The possibility that Clifford lied about causes of the child's injuries to protect the father is entirely consistent with Clifford's testimony that the experience of losing her child combined with education while incarcerated caused her to sympathize with Christopher R. who was also an innocent child, and to realize she should not lie to protect her boyfriends. Under these circumstances, the prosecutor's argument did not amount to assertion of a known falsehood. Rather, it was nothing more than "fair comment on the evidence," and did not constitute misconduct. (People v. Lawley, supra, 27 Cal.4th at p. 156.)
Failure to Provide Notes of Interviews
"[R]aw written notes of witness interviews, other than attorney work product, are 'statements' as defined in sections 1054.3, subdivision (a), and 1054.1, subdivision (f), and thus must be disclosed by both sides." (Thompson v. Superior Court (1997) 53 Cal.App.4th 480, 485.) Defendant contends the prosecutor committed misconduct by failing to provide the defense with her notes of interviews with Clifford, delaying disclosure until just before cross-examination of Clifford, and redacting the claimed work-product.
The record does not support this contention. Before Clifford testified, defense counsel informed the court he had asked for disclosure of the prosecutor's notes of interviews with Clifford but had yet to receive them. Instead, the prosecutor had only provided an oral summary over the telephone. The prosecutor explained her written version had multiple comments in the margins that were her work-product or the work-product of her investigator. To avoid disclosure of this work-product, she read the notes to defense counsel. Defense counsel agreed he was not entitled to disclosure of work-product but asserted since the prosecutor was able to redact the work-product by reading it to him she should also be able to redact the written copies. She agreed to try.
After the noon recess, the prosecutor informed the court she had redacted her work-product and produced the notes. Defense counsel confirmed he had received them. It was agreed he could ask for more time to prepare for and cross-examine Clifford if he deemed it necessary. Defense counsel ultimately did not ask for more time, never suggested the prosecutor had redacted material that was not work-product, and very effectively cross-examined Clifford.
In addition to obtaining Clifford's admission that she lied repeatedly in her statements to the police, defense counsel also established that she did not disclose some important details until after she pleaded guilty and the prosecutor interviewed her.
Thus, the record demonstrates the prosecutor did disclose her notes and those of her investigator. There was no dispute over redaction of work-product to submit to the court, and the court adequately addressed the effect of delay in production by allowing defense counsel to ask for more time if he needed it, an option he ultimately did not need to exercise.
Defendant also vaguely hints that some of the explanations the prosecutor gave for initially resisting disclosure of the notes of her interview suggested she did not understand her duty under Brady to disclose statements that impeach a witness's credibility. (See Kyles v. Whitely (1995) 514 U.S. 419, 432-434.) He does not, however, claim a Brady violation actually occurred. In any event, the record shows the prosecutor ultimately produced the notes defendant sought, and defendant does not identify any Brady material that was not disclosed in this case.
Brady v. Maryland (1963) 373 U.S. 83 (Brady).
Knowledge of Theft of Beyes's Gun
During closing argument, the prosecutor argued one of the reasons the jury should find Clifford credible was her testimony that on January 9, 2008, when she came home from work, defendant showed her a black gun with a clip and told her that he and McGough took these items from a house in Oakland. The prosecutor stated only her inspector, Michael Foster, had access to the police report showing a gun was among the items defendant stole in the January 9, 2008, Beyes home invasion. She added that Clifford "had no access to any information from any source other than the defendant that that gun [used in the gas station robbery] had been stolen in the burglary the night before." In rebuttal, the prosecutor reiterated Clifford had "no other information from anyone. Nobody told her what . . . happened in this case. Nobody told her what anyone else was saying."
Defendant asserts the prosecutor's argument was based on facts not in evidence because absent a waiver of attorney-client privilege it was impossible to determine whether Clifford's counsel informed her of the items taken in the Beyes burglary. He further agues that because McGough did not testify, it was impossible to rule out the possibility McGough told Clifford about the theft of Beyes's gun.
This claim of misconduct is waived because, again, defendant did not make a timely objection and request for admonition.
It also fails on the merits. The prosecutor's argument was not misconduct because she merely urged the jury to draw one of the reasonable inferences from the evidence actually presented. Clifford testified no one but defendant told her about the crimes he and McGough committed. Michael Foster, the district attorney's investigator, testified he was the only person with a copy of the Beyes burglary report, and neither he, nor anyone in his presence, had given a copy to Clifford or her attorney before she made the statement regarding the theft of Beyes's gun. This testimony supports a reasonable inference that the only way Clifford knew about the theft of Beyes's gun was that defendant told her about it, and it was perfectly proper for the prosecutor to urge the jury to draw this inference.
Harmless Error
Even if any of the forgoing acts amounted to misconduct, defendant fails to demonstrate they were individually or cumulatively prejudicial under either Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), or People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).Defendant reasons the claimed misconduct was prejudicial because Clifford's testimony was critical to resolution of important disputed issues in the case, and the effect of the misconduct was to paint her in a falsely sympathetic light and to bolster her credibility.
The applicable standard of appellate review for assessing prejudice depends on whether the misconduct amounts to federal constitutional error. If it does, we apply the Chapman standard and decide whether the error is harmless beyond a reasonable doubt. (See People v. Estrada (1998) 63 Cal.App.4th 1090, 1106-1107, citing Chapman, supra, 386 U.S. at p. 24.) If the error does not rise to that level, we apply our state Constitution's Watson standard to determine if there is a reasonable probability of a different result. (People v. Espinoza (1992) 3 Cal.4th 806, 820-821, citing Watson, supra, 46 Cal.2d at p. 835.) As we explain, in this case the evidence of guilt is so strong, and Clifford's testimony is so peripheral to the crucial disputed issues in the case, the alleged misconduct was harmless under either standard. (See People v. Booker (2011) 51 Cal.4th 141, 186 [prosecutorial misconduct did not cause prejudice under Chapman or Watson when among other things "the evidence of defendant's guilt (notably, his own confession) was overwhelming"].)
Clifford provided some testimony linking defendant to Campbell's Buick, relayed some of defendant's admissions about attempting to steal the Chevelle and carjacking the Camaro, provided details on how she and defendant disposed of Senator Perata's Charger, and provided evidence about the drinking and other acts preceding the robbery such as the purchase of the ski mask. She also described her own role as a lookout.
However, once defendant testified and admitted he committed the foregoing offenses, the primary disputed issues in the case were reduced to (1) whether he intentionally discharged his weapon during the robbery and (2) whether he intended to kill Singh. Clifford's testimony had little to no relevance on these issues. She testified she heard three shots, but did not actually observe the shooting. She did not testify to any statements defendant made before or after the shooting that would have been probative on the issue of intent to kill, or whether he intentionally fired the gun.
Clifford did provide some testimony to support the voluntary intoxication defense. But if the prosecutor's conduct improperly bolstered her credibility on that issue, the alleged misconduct only inured to defendant's benefit.
Instead, the overwhelming evidence on the issue of intent to kill, and whether defendant discharged the gun intentionally or accidentally, was entirely independent of Clifford's testimony. The prosecutor urged the jury to infer intent to kill, and that defendant discharged the weapon intentionally, based upon Singh's testimony that defendant pointed the gun at him and shot at him not once, but three times, the video footage of the robbery, the testimony of criminalist Mark Bennett regarding the force necessary to pull the trigger, and expert testimony analyzing the trajectory of the bullets, and the casings found at the scene. The prosecutor also relied on circumstances showing the deliberation with which defendant acted during the robbery, in the car and foot chase afterwards, and the presence of mind he had immediately upon his arrest to attempt to negotiate with the arresting officer. The probative power of the foregoing evidence on the critical disputes issues did not depend upon the jury crediting Clifford. In light of the overwhelming independent evidence of defendant's guilt, we are confident under any standard of prejudice, the claimed misconduct concerning Clifford did not affect the outcome of the trial, and defendant would not have obtained a more favorable result absent the alleged errors. (See, e.g., People v. Booker, supra, 51 Cal.4th at p. 186 [prosecutorial misconduct did not cause prejudice under Chapman or Watson when among other things "the evidence of defendant's guilt (notably, his own confession) was overwhelming"].)
Other Instances of Alleged Prosecutorial Misconduct Asking Whether Prosecution Witnesses Were Lying
The prosecutor opened her cross-examination of defendant by asking him to confirm every one of "the witnesses that came into this courtroom and about the things that you did were telling the truth; isn't that right . . . ?" When defendant replied "No," the prosecutor asked: "Are you saying that all of the witnesses were lying about what you did?" Defense counsel did not object, and defendant responded: "You said all the witnesses . . . . Maeve wasn't telling the complete truth. All the witnesses didn't tell the truth."
Defendant contends it was misconduct to ask him to opine on whether the prosecution witnesses were lying. There is a line of federal authority that categorically holds "were they lying" questions constitute misconduct. (E.g., United States v. Sanchez (9th Cir. 1999) 176 F.3d 1214; United States v. Richter (2d Cir. 1987) 826 F.2d 206.) " 'The courts in these cases explain that these questions infringe on the jury's right to make credibility determinations [citations], or that the questions are misleading because they suggest that the only explanation for the discrepancy between defendant's testimony and the other witness' testimony is that one of them is lying [citations]. Moreover, the questions might be considered misleading or calling for a conclusion in that they suggest that the defendant can know what another witness was thinking.' " (People v. Zambrano (2004) 124 Cal.App.4th 228, 239.)
The California Supreme Court, in People v. Chatman (2006) 38 Cal.4th 344 (Chatman), declined to adopt this categorical approach. Instead, it held "courts should carefully scrutinize 'were they lying' questions in context. They should not be permitted when argumentative, or when designed to elicit testimony that is irrelevant or speculative. However, in its discretion, a court may permit such questions if the witness to whom they are addressed has personal knowledge that allows him to provide competent testimony that may legitimately assist the trier of fact in resolving credibility questions." (Id. at p. 384; see also People v. Collins (2010) 49 Cal.4th 175, 206 [not misconduct to ask defendant whether a particular witness lied when defendant's testimony contradicted the witness]; People v. Hawthorne (2009) 46 Cal.4th 67, 97-98 [not misconduct to ask a defendant who is a percipient witness to the events whether other witnesses who describe those events are testifying truthfully because he might be able to provide insight on whether witnesses are intentionally lying or are merely mistaken].)
The court in Chatman also noted the defendant's reliance on federal cases holding "were they lying" questions are always improper was "misplaced" because they "involve application of the Federal Rules of Evidence [citation]. They interpret a similar statutory framework but they do not establish constitutional principles binding on the states." (Chatman, supra, 38 Cal.4th at p. 381, fn. 15.)
In this case, the question was purely argumentative and therefore improper. Defendant did not open the door to "were they lying" questions on cross-examination by testifying the witnesses who testified against him were untruthful. (Cf. People v. Riggs (2008) 44 Cal.4th 248, 318.) To the contrary, on direct examination he admitted committing nearly every offense with which he was charged, including the gas station robbery. His testimony conflicted with that of prosecution witnesses only in minor respects. Moreover, when defendant responded that Clifford had not told the complete truth, the prosecutor did not follow up to find out the specific respects in which defendant contended Clifford lied or failed to tell the complete truth. Nor did she attempt to elicit defendant's personal knowledge as to why Clifford would lie. (Cf. People v. Tafoya (2007) 42 Cal.4th 147, 179 [proper to ask defendant whether codefendant and other witnesses were lying when followed by questions allowing defendant to explain based upon his personal knowledge why these witnesses might testify falsely].)
Under these circumstances, the question was purely argumentative and should not have been asked. (Chatman, supra, 38 Cal.4th at p. 384.) Nevertheless, "the prosecutor only asked the question once and did not repeatedly ask it to berate defendant . . . in an attempt to inflame the passions of the jury. (Contrast People v. Zambrano, supra, 124 Cal.App.4th at p. 242.) Although we strongly disapprove the use of a "were they lying question" for purely argumentative purposes, in this case "[t]he prosecutor's sole question [although improper] was neither deceptive nor reprehensible, and did not constitute misconduct." (People v. Hawthorne, supra, 46 Cal.4th at p. 98.)
Questions about McGough's Gun
Defendant next contends the prosecutor committed misconduct when questioning him about the nine-millimeter gun McGough used to carjack the Camaro. Without objection the prosecutor asked whether "you and your friend [McGough] . . . had that nine-millimeter gun that was used the night you did the carjacking in San Leandro." Defendant initially answered yes, but when asked again whether "you had a nine-millimeter gun," defendant responded no. The prosecutor repeated: "You and your friend [McGough] had a nine-millimeter gun? Defendant clarified: " No. He did."
Defendant argues the prosecutor phrased these questions to falsely imply "the gun [was] in [defendant's] hand when the evidence indicated it was [McGough] who used the gun." We find nothing false or misleading in the phrasing of these questions. Read in context it is clear the prosecutor used the word "you" in this line of questioning in the plural to refer to McGough and defendant. The apparent purpose was simply to establish defendant knew McGough had the gun, not to imply it was in defendant's hands during the carjacking.
The prosecutor also asked whether "[t]he nine-millimeter gun . . . belonged to [McGough's] cousin," and defendant confirmed it did. The prosecutor then followed up by asking "And that was the gun that you and [McGough] were told to keep clean, don't get any bodies on it; isn't that right?" Defense counsel objected, without specifying the ground and the court overruled the objection. Defendant then answered: "I don't know about—no, no." Defendant argues it was misconduct to ask whether he had been told not to "get any bodies" on the gun because the prosecutor asked the question without reasonable ground to anticipate a confirming answer, or any other means to prove the implied fact.
"It is misconduct for a prosecutor to ask a witness a question that implies a fact harmful to a defendant unless the prosecutor has reasonable grounds to anticipate an answer confirming the implied fact or is prepared to prove the fact by other means. [Citation.] But if the defense does not object, and the prosecutor is not asked to justify the question, a reviewing court is rarely able to determine whether this form of misconduct has occurred. [Citation.] Therefore, a claim of misconduct on this basis is waived absent a timely and specific objection during the trial." (People v. Price (1991) 1 Cal.4th 324, 481, italics added; see also People v. Bittaker (1989) 48 Cal.3d 1046, 1098, impliedly overruled on another point as stated in People v. Baldwin, supra, 189 Cal.App.4th at p. 999.)
People v. Price, supra, 1 Cal.4th 324, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165.
Here, although defense counsel did object, he did not state the specific ground. Consequently, the prosecutor was not asked on the record to justify the question, and the record is inadequate to allow us to determine whether the prosecutor had a factual basis for the question and some other means of proving the implied fact. Since we can only speculate as to whether the prosecutor had a factual basis for the question the claimed error is not reviewable on appeal. (People v. Price, supra, 1 Cal.4th at p. 481.)
The inadequacy of the record on this issue is illustrated by defendant's argument that "[i]t is doubtful that the prosecutor had reason to believe" defendant would answer in the affirmative, and "doubtful" the prosecutor was prepared to prove by other means defendant had been told not to "get bodies" on the gun. (Italics added.)
In any event, even if we assume arguendo the prosecutor did not have a factual basis for the question, asking it was harmless. The only prejudice defendant identifies is that the question implied that the person who loaned him the gun believed he might use it to commit violent crimes. In the face of defendant's own admission that he and McGough used a gun to take the Camaro, that he carjacked Senator Perata at gunpoint, and that he robbed Sepehr at gunpoint, and the other overwhelming evidence of guilt we have already described, this isolated question about the "don't get any bodies on it," could not have had any prejudicial impact under Watson, supra, 46 Cal.2d at page 836, or Chapman, supra, 386 U.S. at page 24.
Questions about Defendant's Conduct in Prior Arrest
Next defendant contends the prosecutor committed misconduct by asking questions about attempts he made during a prior arrest to negotiate a deal. He argues the evidence of his conduct during a prior arrest was inadmissible under Evidence Code section 1101, and the prosecutor asked questions about the arrest only to prejudice the jury against defendant by "painting [him] as a violent, gun toting criminal who would fight the police, and had a habit of doing so."
The challenged line of questioning occurred when the prosecutor asked whether defendant told Officer Cardoza, the arresting officer, that he had "information so that you could get out from under . . . these series of crimes that you had just committed." Defendant initially acknowledged he made such a statement, but when the prosecutor asked specifically whether he remembered saying "I got information, can we make a deal," defendant said "No, I don't." The prosecutor then asked, "Well, that's what you'd done before, try to make a deal when you've . . . gotten in trouble with the police, right?" Defendant replied: "A long time ago." The prosecutor then asked several more questions about the circumstances of the prior conduct including whether he had also been driving recklessly, evading an officer, and carrying gun on the prior occasion. When defense counsel finally objected that the foregoing "[s]ounds like 1101 evidence" the court overruled the objection stating "its foundational as to what kind of similarities as far as making a deal, not the crime itself."
Defendant argues evidence of his similar conduct in a prior arrest was not admissible under Evidence Code section 1101 because he had admitted the fact the prosecutor was trying to prove, i.e., that immediately upon his arrest he had tried to make a deal with Cardoza. Even if we assume arguendo this evidence should have been excluded, and that it was misconduct to pursue this line of questioning, it was harmless. Defendant, by his own admission, robbed the gas station attendant at gun point, carjacked Senator Perata's vehicle at gunpoint, and together with McGough had taken the Camaro at gunpoint. He also admitted that he led the police in a wild car chase resulting in a collision with another vehicle as he attempted to flee the scene of the gas station robbery. In the face of this admitted violent criminal behavior involving guns, and evading police officers, the additional information about similar conduct in a prior arrest could not have had a prejudicial impact on the jury's evaluation of defendant's guilt under Watson or Chapman.
The prosecutor relied upon defendant's attempt to make a deal as one of several circumstances rebutting the defense argument that defendant was intoxicated and fired the gun accidentally without any intent to kill.
Prosecutor's Demonstration of Trigger Pull Force
Mark Bennett, a criminalist specializing in firearms, testified he performed a test on the gun defendant used in the gas station robbery. He determined the force required to pull the trigger was eight and a half pounds for double action firing, meaning a shot fired without first cocking the hammer, and five pounds for single action firing. To illustrate the point, he told the jury "to imagine . . . if you take a string, put it around a [five-pound bag of sugar] and lift that five pound bag of sugar with your finger, that's what is required to fire this gun in a single action." He then gave the same example using an eight and a half-pound bag to demonstrate the amount of force required for double action firing.
In closing argument, without any defense objection, the prosecutor referred back to the sugar bag example and told the jury she wanted "to see what does eight pounds feel like. Well, this is eight pounds of sugar, just like he used in his example. And I held this bag with eight pounds in it and used my finger and tried to see what it would be like to be able to pull that trigger. And there's no involuntary movement that my hand could do that, would allow me to move this bag up and down." The prosecutor also demonstrated trying to do the same thing with five pounds of sugar. She concluded: "Now, the weights that Mr. Bennett used in the lab were scientific, but what he told us is, if you think about it, it's like using a bag of sugar, tying a string around it and trying to lift it with your finger. That's what it would take. So while he did a scientific experiment, I showed you the layperson's experiment."
Referring to facts not in evidence is " 'clearly . . . misconduct' [citation], because such statements 'tend[] to make the prosecutor his own witness—offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, "although worthless as a matter of law, can be 'dynamite' to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence." [Citations.]' [Citations.]" (People v. Hill (1998) 17 Cal.4th 800, 828.) The prosecutor therefore should not have told the jury she had tried to lift an eight-pound bag of sugar with her finger and had concluded there was no involuntary movement that would accomplish the task.
Nevertheless, the error is harmless because the prosecutor's demonstration merely repeated the sugar bag example already properly before the jury through Bennett's testimony. Any reasonable juror relying on common knowledge and experience would draw the same inference the prosecutor told the jury she had drawn, i.e., it would be extremely difficult to accidentally exert five to eight and a half pounds of force three times in a row. Given the strength of the evidence properly before the jury on this point we are confident the prosecutor's demonstration and conclusion did not have any effect on the jury's evaluation of the defense argument that the gun discharged accidentally.
Appealing to Sympathy and Referencing Unrelated Crimes
During closing argument the prosecutor asked the jury generally to "reflect" on how the crimes in this case affected the victims and witnesses and even the police officers involved. In the context of arguing about the severity of Christopher's injuries, she specifically referred to one officer who broke down while testifying about the injury to Christopher and contrasted it with Christopher's own more clinical account. She also referred to defendant's testimony that he was "stressed" and stated: "imagine what it feels like to be Chris [R.] and get up every morning."
It is " 'settled that an appeal to the jury to view the crime through the eyes of the victim is misconduct at the guilt phase of trial; an appeal for sympathy for the victim is out of place during an objective determination of guilt. [Citations.]' [Citation.]" (People v. Arias (1996) 13 Cal.4th 92, 160.) Read in context, however, much of prosecutor's argument as it pertained to Christopher was relevant to the determination of whether defendant had inflicted great bodily injury for the purpose of the alleged enhancements. To the extent the argument was not relevant to any issue of guilt, we find it was not prejudicial. As we have explained, defendant admitted he committed every offense except for the attempted murder and the facts necessary to find true the enhancements based on the discharge of the weapon and injury to Christopher R. Thus it was beyond dispute defendant was the person who robbed Sepehr at gunpoint and turned and aimed the gun at Singh. The evidence defendant fired the weapon was "essentially conclusive," and the evidence he did so intentionally and intended to kill was very strong. (Id. at pp. 160-161.) In these circumstances "[a] momentary appeal to victim sympathy could have little effect on" the disputed issues of intent to kill and whether he fired the weapon accidentally. (Id. at p. 161.)
Defendant also complains the prosecutor referred to other crimes in the news that were outside the evidence. Specifically, the prosecutor argued: "[Defense counsel] would like to say that the defendant didn't intend . . . to pull the trigger, but we know that it's not easy to pull t[he] trigger. . . . You point a loaded gun at someone and pull the trigger three times, you're intending to kill them. That's what happens. We can watch the news every night and know about the impact of guns and the use of guns to kill people, particularly here in Oakland. It's not a good enough excuse that the defendant claims he didn't mean to do it or he doesn't remember pulling the trigger." (Italics added.) The prosecutor also argued, "pointing that semi-automatic .40 caliber weapon directly at Tejpal Singh as he was on his phone trying . . . to call 911 and pulling that trigger, not once, not twice, but three times directly at him was an attempt to kill. . . . You don't have to go very much further than your 6:00 o'clock news to know what happens when people point guns, loaded guns at another and pull the trigger." (Italics added.)
This argument was not an invitation to find defendant guilty based on fears about other crimes being reported in the news. To the contrary, the reference to the six o'clock news was nothing more than a rhetorical device illustrating the point that common sense and experience teaches the consequence of pointing a loaded gun at someone and pulling the trigger is death or serious injury. (People v. Williams (1997) 16 Cal.4th 153, 221 [" ' "counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature" ' "].)
Defendant also contends the following argument was an improper appeal to find defendant guilty to preserve the reputation of the jurors in the eyes of their children and society at large instead of basing the verdict on the evidence: "Being a member of our civilized society is really a privilege and there are rules that we live by. At the end of the day, I'm sure we all hope that we're leaving a mark on society, a mark for our children, a mark for our families, a mark that helps to better the community."
The prosecutor, however, preceded the comment about leaving a mark on society by emphasizing the strength of the evidence against defendant. She also followed the remark by reasserting "the evidence is clear" and thanking the jurors for "upholding your ethical obligation as judges of the facts, and at the end of your case, I'd ask you to find him guilty of all the crimes that he's charged with." In context, there is no reasonable likelihood the jurors would have understood the reference to leaving a mark for society and their children to suggest they should decide the case based upon anything other then the evidence before them. (Samayoa, supra, 15 Cal.4th at p. 841 [no misconduct if there is no "reasonable likelihood the jury construed or applied any of the complained-of remarks in an objectionable fashion"].) The prosecutor did nothing more than ask the jurors to uphold the rule of law and convict defendant based upon the evidence.
She argued: "I submit to you that the evidence in this case is overwhelming that the defendant is guilty of the crimes. When you point a gun at someone . . . and pull the trigger, one, twice, three times, you know exactly what they were doing. Bullets kill. Guns kill. Point a gun at someone, pull the trigger, you intend to kill them."
In sum, having reviewed each claimed instance of prosecutorial misconduct we conclude either no misconduct occurred, or if it did occur it was not prejudicial.
Defendant's request for judicial notice is denied.
B. Judicial Misconduct
Defendant contends the trial court "made disparaging and intemperate remarks about [defendant], was partial in his rulings, questions, and comments, and failed to control" the prosecutor's misconduct. He argues these acts constituted judicial misconduct that individually and cumulatively resulted in prejudice requiring reversal of his convictions.
Defendant did not raise the issue of judicial misconduct below. "As a general rule, judicial misconduct claims are not preserved for appellate review if no objections were made on those grounds at trial." (People v. Sturm (2006) 37 Cal.4th 1218, 1237.) Nevertheless, because defendant again asserts any failure to preserve the issue constituted IAC, we exercise our discretion to review his claim of judicial misconduct on the merits.
"[I]t is 'the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.' However, 'a judge should be careful not to throw the weight of his judicial position into a case, either for or against the defendant.' [Citation.] [¶] Trial judges 'should be exceedingly discreet in what they say and do in the presence of a jury lest they seem to lean toward or lend their influence to one side or the other.' [Citation.] A trial court commits misconduct if it ' "persists in making discourteous and disparaging remarks to a defendant's counsel and witnesses and utters frequent comment from which the jury may plainly perceive that the testimony of the witnesses is not believed by the judge." ' [Citations.]" (People v. Sturm, supra, 37 Cal.4th at pp. 1237-1238.)
Court Participation in Examination of Forensic Toxicologist
The defense called Halle Weingarten, a forensic toxicologist, to explain how the consumption of alcohol affects memory, muscle control and judgment. Defendant contends the court committed judicial misconduct when it intervened during defense counsel's examination of Weingarten and elicited qualifications or caveats to her testimony emphasizing that the effects of alcohol vary depending upon the individual and circumstances.
On cross-examination Weingarten testified the general effects of alcohol she described on direct examination varied "from individual to individual," depending on a variety of factors including weight and tolerance. On redirect defense counsel asked whether at a blood-alcohol level of .23 "there [are] some functions that would be affected regardless of your toleration level?" Weingarten responded that "data processing, interpreting sensory input, judgment, inhibitions" would be affected as well as "visual acuity manual dexterity, reaction time." She further testified at ".23 I would be expecting most of the population to be exhibiting some outwards signs" of impairment. (Italics added.) The court interrupted and asked a few questions to clarify that this was a general expectation and that individual tolerance and physiology were still important variables.
The court "did not step outside its proper role of attempting to clarify witness testimony and trying to help the jury understand the evidence." (Cook, supra, 39 Cal.4th at p. 598.) Nothing in these few clarifying questions crossed the line of neutrality. Rather the court's questions were " ' "temperate, nonargumentative, and scrupulously fair." ' " (Id. at p. 597.) Moreover, the trial court instructed the jurors he did not intend by "any question I may have asked" or by "any ruling . . . to intimate or suggest what you should find to be the facts or that I believe or disbelieve any witness," and told them they must disregard any impression they formed about the judge's views, and instead draw their own conclusions. "That instruction reminded the jury of the trial judge's role as an impartial presiding officer whose occasional questions to witnesses were designed to clarify the evidence without favoring either side". (Id. at p. 598.)
Evidentiary Rulings during Defendant's Testimony
Defendant next asserts a series of evidentiary rulings the court made during his testimony conveyed the impression the court "favored the prosecutor and disliked the defense and the defendant" and believed defendant's testimony "was worthless, or worse that [he] was a liar." The record does not support this contention.
The first such ruling occurred just prior to defendant taking the stand and outside the presence of the jury. Defense counsel asked the court to rule on whether the prosecutor could impeach defendant with Evidence Code section"1101 evidence." The court stated it would reserve ruling and wait "to see what your client says as to whether he opens the door for certain other uncharged acts or not." Defendant offers no analysis as to why the trial court abused its discretion in connection with this ruling. In any event, an adverse evidentiary ruling, even if erroneous does not " 'establish a charge of judicial bias.' " (People v. Farley (2009) 46 Cal.4th 1053, 1110.) Moreover, since this ruling was not made in the jury's presence there is no possibility it conveyed any impression the court was biased against defendant or believed he was not credible.
Next, defendant points to the court's ruling at the outset of his testimony. Defense counsel asked defendant why he was "already crying." Defendant responded "this situation has been so much pain by my hands. I can't take it no more. When Chris came up here and testified, it took everything from me. That—I'm sorry. I couldn't move. I feel like I'm loosing [sic] it. I can't sleep at night. That's why I need to tell the truth. I got to come up. I don't know what to do anymore. I'm scared." At this point the prosecutor interrupted: "Perhaps we can have a question and answer." The court agreed: "Yes, this is not a sentencing hearing." It was entirely proper to sustain the prosecutor's objection to the narrative response. The court's reference to the fact that this was "not a sentencing hearing" only served the proper purpose of directing defense counsel to confine the examination to issues relevant to determination of guilt.
Defendant also contends there was another instance in which the court misstated his testimony and implied it did not find defendant was credible. The relevant background is that when defendant testified on direct about the carjacking in San Leandro, he told the jury he was in the Chevelle trying to get it going when he heard shots, ran, and got into the Camaro with McGough, who drove it away. The prosecutor referred to this testimony on cross-examination. She asked, and defendant confirmed, that his testimony was that "[McGough] basically thought up the crime" and defendant had no "idea he was going to commit the carjacking" of the Camaro. The prosecutor stated: "You told this jury that the carjacking in San Leandro you put it off on [McGough], that [McGough] is the one who did all of that?" Defense counsel objected "[m]isstates his testimony. He said he's taking responsibility for that carjacking also." The court overruled the objection. The court stated: "He said he didn't know anything about it. Heard some shots and did some running."
Defendant argues the court misstated defendant's testimony when making this ruling because the court did not mention defendant had also acknowledged he got into the Camaro with McGough and drove away with him. According to defendant, the court, in effect, "told the jury that [defendant] was incorrectly minimizing his actual culpability" by putting primary responsibility on McGough. To the contrary, the court correctly stated defendant had testified he heard shots and ran. Defendant, himself, confirmed he had testified that McGough thought up the crime and defendant had no idea he was going to carjack the Camaro. In any event, nothing the court said or did undermined any defense to this carjacking charge because later in the cross-examination defendant finally unequivocally took responsibility for it.
Defendant also complains the court committed misconduct by making a comment showing he "disliked the defense and the defendant." The prosecutor asked defendant why he went to buy a new ski mask before robbing the gas station. She described a "problem with the other ski mask" used in the Perata carjacking, and asked whether it was "in the Mustang." Defense counsel interjected "Objection. Which mask are you referring to now?" Both the court and the prosecutor responded: "The old mask." The court added: "He knew." Defendant asserts the court's comment "[h]e knew," somehow conveyed the court believed defendant "was a liar, [and] that appellant was guilty," and "the jury could plainly see that the court favored the prosecutor and disliked the defense and the defendant." Yet, the only meaning reasonably ascribed to the court's comment is innocuous. The court was simply saying the request for clarification was unnecessary because defendant knew to which mask the prosecutor referred.
Evidentiary Rulings Favoring the Prosecution
Defendant contends the court also committed judicial misconduct by making a series of incorrect evidentiary rulings favoring the prosecution. However, a " 'trial court's numerous rulings against a party—even when erroneous—do not establish a charge of judicial' " bias or misconduct. (People v. Farley, supra, 46 Cal.4th at p. 1110.) We have examined the court's rulings and conclude defendant fails to demonstrate a pattern of error suggesting judicial bias in favor of the prosecution.
First, defendant contends the court erred by allowing Officer Cardoza to give an opinion on the ultimate issue of defendant's guilt. He bases this contention upon Cardoza's testimony that as he tackled defendant and held him on the ground defendant stated "he had some information for me and he wanted to work out a deal." The next day, reading from his notes, Cardoza testified defendant stated: " 'I had to do it.' 'I had no choice.' " Cardoza added defendant "told me he wanted to work something out, something to that effect, and that he had something for me." The prosecutor asked: "Based upon your experience and training what did you interpret that to mean?" Defense counsel objected, "calls for speculation," but the court overruled the objection. Cardoza answered: "I interpreted it that he wanted to make a deal for the incident that he had just committed." When the prosecutor asked specifically, what did Cardoza interpret "I have something for you" to mean, defense counsel objected "lacks foundation." The court overruled the objection explaining, "[h]e testified that he's been a part of other units that would put him in a place where he would know what that would mean." Cardoza explained "I have worked with other informants in the past and sometimes they want to trade cases against them for other cases. . . . I felt that he wanted to give me maybe someone else that had committed other types of crimes in turn for leniency against his crimes."
We see no analogy between the foregoing testimony and the improper opinion testimony in the case upon which defendant relies, People v. Torres (1995) 33 Cal.App.4th 37, 46-47. In Torres, a police officer gave testimony defining the offenses of robbery and extortion and testified a "robbery 'is what happened in this particular case.' " (Id. at pp. 44-45.) The court held these were improper subjects for opinion testimony, and the officer's testimony was the equivalent of expressing an opinion the defendant was guilty as charged. (Ibid.)By contrast, Cardoza did not opine on whether defendant had committed robbery, attempted murder, or any of the other specific crimes with which he was charged. In context, it is clear Cardoza merely related defendant's own incriminating statements made upon arrest reflecting defendant's general consciousness of guilt without expressing any opinion on whether defendant was in fact guilty of any of the crimes for which he had been arrested.
Next, defendant asserts the court erred by admitting evidence of the burglary of Beyes's residence. The Beyes burglary was an uncharged offense. The prosecutor asked the court to admit evidence of the burglary because one of the items taken was a .40-caliber gun. She argued the evidence of this uncharged offense was admissible to support the credibility of Clifford's testimony that defendant showed her a .40-caliber gun and told her he took it when he "had ran through a house," in Oakland. The court correctly ruled the evidence of the burglary of Beyes's residence was admissible for the purpose of supporting the credibility of Clifford's testimony. (Evid. Code, § 1101, subd. (c).) The discrepancy that later emerged between Beyes's testimony that the burglary occurred "early evening" and Clifford's testimony that defendant told her he "ran though a house" at night while she was at work was for the jury to resolve and weigh in deciding whether to credit Clifford. The discrepancy did not affect or undermine the court's determination regarding admissibility of this evidence pursuant to Evidence Code section 1101, subdivision (c).
Defendant next maintains the court should have sustained a relevance objection to Senator Perata's testimony about gun-control legislation and youth programs he had worked on, and a gun buy-back program he initiated after Christopher R. was shot. The court overruled the relevance objections, and stated with respect to the buy-back program it "[g]oes to bias." Defendant argues the court's decision to allow the question showed "the court and the prosecutor were joined at the hip" because Perata's gun-control activities had no conceivable relevance to the issue of bias. We agree the relevance is tenuous, but it was within the realm of reason for the court to conclude Perata's gun-control activities had some relevance on the issue of his bias concerning crimes involving guns. No rule of evidence required the prosecutor to refrain from exploring the bias of her own witness and instead wait for the defense to elicit it on cross-examination. Nor does anything in the record support defendant's assertion this evidentiary ruling sent a message to the jury that "gun violence in Oakland is a huge problem and out of control and unless you the jury make an example of the defendant things like what occurred in this case will continue to occur."
Defendant also contends the court committed judicial misconduct by eliciting testimony from Sergeant Galindo, a homicide investigator, that undermined a defense theory that the discovery of a nine-millimeter slug on a corner across the street from the music school could support an inference a second shooter might have been involved. Again, our review of the record satisfies us the court "did not step outside its proper role of attempting to clarify witness testimony and trying to help the jury understand the evidence." (Cook, supra, 39 Cal.4th at p. 598.)
The relevant background is as follows: On direct examination Sergeant Galindo defined the crime scene to include the gas station and the music school across the street. Three .40-caliber cartridge casings had been recovered from the scene. A ballistics expert testified all three came from the .40-caliber gun found in the Mustang. A nine-millimeter slug was recovered in front of 4341 Piedmont Avenue which was on a different corner from the gas station and on the opposite side of the street from the music school. On cross-examination defense counsel established Galindo was aware a witness had discovered a nine-millimeter slug and he did not contact the witness. Sergeant Galindo testified on redirect that he determined the nine-millimeter slug was not connected to this case, but did not explain how he reached that conclusion. After some further recross on whether the nine-millimeter slug "was in [the] direct line of fire from the Chevron Gas Station," the court asked Sergeant Galindo, to "describe for the jury the criteria you used or what drew you to the conclusion that the nine-millimeter slug had no relevance in this case." Since Sergeant Galindo had not yet explained the reasons for his conclusion, the court's question simply ensured the jurors had the information they needed to evaluate it.
Defendant also complains that during Sergeant Galindo's testimony the court made a series of rulings on objections displaying a bias in favor of the prosecution. He asserts the court erred by sustaining the prosecutor's objection that defense counsel misstated the evidence by asking in reference to the nine-millimeter slug "were any other slugs recovered from the scene." (Italics added.) The ruling was correct because Galindo testified the "scene" consisted of the gas station and the music school, and the nine-millimeter slug was not found in either area. The court also correctly overruled defense counsel's hearsay objection when Galindo related an out-of-court statement Singh and Sepehr made about the number of shots fired. The court reasoned the statement was "[n]ot being offered for the truth. It is being offered to explain why [Galindo] drew the conclusion he drew" that the nine-millimeter slug had nothing to do with the offenses he was investigating. Since both of these rulings were correct on the merits, they do not support defendant's contention that the court engaged in misconduct by allying with the prosecution.
Failure to Rein in Alleged Prosecutorial Misconduct
Finally, defendant contends the court failed to reign in the prosecutor's misconduct. Yet, we have reviewed the many instances of alleged prosecutorial misconduct and concluded most did not rise to the level of misconduct and none resulted in prejudice. For the same reasons we find no prejudicial judicial misconduct in the form of failure to rein in the prosecutor's misconduct.
Defendant also filed a petition for a writ of habeas corpus (case No. A131005) based upon many of the same claims of prosecutorial misconduct he raises in this appeal. We deny the petition by separate order.
IV. DISPOSITION
The judgment is affirmed.
Banke, J. We concur: Marchiano, P. J. Dondero, J.