Opinion
A146871
04-07-2017
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY MICHAEL AIELLO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51419126)
Anthony Michael Aiello appeals from a judgment of conviction and sentence imposed after a jury found him guilty of leaving the scene of an injury accident. (Veh. Code, § 20001, subd. (a).) He contends the prosecutor committed misconduct and a probation condition for warrantless searches was improper. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
Aiello was charged in an information with leaving the scene of an injury accident (Veh. Code, § 20001, subd. (a)). The information also alleged that Aiello personally inflicted great bodily injury on the victim (Pen. Code, § 12022.7, subd. (a)). The matter proceeded to a jury trial.
A. Prosecution Evidence
1. Victim Rivera
Francisco Rivera testified that he was riding his mountain bike in a crosswalk around 8 p.m. on June 5, 2013, when he was struck by a truck. Unable to break free, he started to be dragged under the truck and screamed for the driver to stop, banging on the truck's hood, very hard, more than 10 times. When the truck slowed, Rivera was able to push himself out from under the truck before it sped off, but the truck ran over his legs and turned him over onto his back. As a result, Rivera lost two front teeth, his tibia was severed in half, he was in a cast from his toes to his hip for nine months, and he uses a cane and can no longer ride a bike. His bike was broken in two.
2. Witness Jeffery
Arthur Jeffery testified that he and family members were in a vehicle waiting at a red light at the intersection of West 10th Street and Auto Center Drive in Antioch at 8:00 p.m. on June 5, 2013. Jeffery saw a white truck strike a person (Rivera), who was riding a bicycle in the crosswalk. The truck, driven by Aiello, dragged Rivera through the intersection as it turned left. Jeffery honked his horn and yelled at the driver to stop. The truck started to slow down but then accelerated and sped away. Jeffery followed the truck, which failed to stop at a red light and stop signs. During the chase, Jeffery honked his horn and flashed his headlights while Aiello drove up to 50 miles per hour. Jeffery eventually cut the truck off and approached on foot. He reached into the truck, shut off the engine, and took the keys. Jeffery opened the door and took Aiello out of the truck and "set him down on the ground." Jeffery's wife called 911. The police arrived and took Aiello into custody.
B. Defense Evidence
1. Dr. Perez
Dr. Frank Perez, a forensic engineer at Boster, Kobayashi & Associates, was accepted by the court as an expert in accident reconstruction.
Based on a computer simulation, Dr. Perez testified that Aiello's truck was traveling at a slow speed (5.8 miles per hour at impact). He concluded that Aiello's truck weighed approximately 4,980 pounds, while Rivera and his bicycle weighed about 195 pounds, and only about six seconds elapsed between the time Aiello's truck started moving at the intersection and the time Rivera had been hit and cleared the truck. In addition, Dr. Perez testified, the sun was low in the sky, and Aiello was facing the sun; a driver would hear less if the truck windows were up and the air conditioner and radio were on; the Motor Vehicle Code considers bicycles to be vehicles, and vehicles would not be expected to be in a crosswalk; and Rivera was riding the bike against traffic.
During cross-examination, Dr. Perez acknowledged that he did not visit the intersection, write a report, or talk to Rivera, Aiello, or witnesses. He also testified that his firm bills $275 per hour for office work and $350 per hour for testifying in court, and he had spent approximately four hours on the case for a total fee of roughly $2,500. A colleague worked on the case and submitted his bill as well.
2. Aiello
Aiello testified that he stopped in the left turn lane at a red light at Auto Center Drive and 10th Street. It was hot, he had the windows up and the air conditioning on, and he was listening to music on the radio. He turned left on the green arrow. As he went through the intersection, it felt like he had run over something minor in the road, like a pothole or debris. Aiello did not see a person or a bicycle. He thought his tire might be going flat, so he pulled slightly toward the side of the road. He did not feel anything more, so he believed nothing significant had happened and drove on.
Aiello realized a truck-like vehicle was behind him, flashing its lights and acting "kind of weird." Aiello changed lanes, and the vehicle behind him did as well. Aiello went through a red light because no other cars were coming and he wanted to get away from the pursuing vehicle, but the vehicle also ran the red light and continued to follow him, causing Aiello to become very concerned for his safety. With the vehicle close behind him, Aiello made a U-turn without heeding a stop sign and eventually came to a stop near an apartment complex or business establishment. The vehicle that was following him blocked his path, and the driver got out and told Aiello he had hit a child. Aiello did not know what the person was talking about. The driver reached inside Aiello's car, pulled out Aiello's keys, and grabbed Aiello by the neck and "yanked" him from his truck. The police arrived minutes later and informed Aiello that he was driving on a suspended license.
Aiello testified he would have stopped if he had known that he hit someone in the intersection. He acknowledged that his license was suspended in 2011 for failing to pay tickets for speeding and not coming to a complete stop, but claimed he was unaware it was still suspended at the time of the accident.
Other defense witnesses testified to the effect that Aiello was of good character and Rivera was at fault for the initial accident.
C. Jury Verdict and Sentence
The jury found Aiello guilty of leaving the scene of an injury accident, but found the great bodily injury enhancement allegation not true. The court suspended imposition of sentence and placed Aiello on formal felony probation for five years with various terms and conditions, including the standard conditions that he obey all laws and not possess a firearm, and, at issue here, that he submit to warrantless searches of his person and residence.
This appeal followed.
II. DISCUSSION
A. Prosecutorial Misconduct
Aiello contends the prosecutor committed misconduct during closing argument by disparaging the defense's expert witness, Dr. Perez, and his attorney.
1. Prosecutor's Comment
As mentioned, Dr. Perez testified on cross-examination that he was going to be paid approximately $2,500 for the time he spent working on the case. In closing argument, the prosecutor challenged Dr. Perez's testimony in several respects, including the following. "[PROSECUTOR]:. . . Let's talk about his bias. He's a paid expert. I imagine he would want to keep his employment and keep getting paid for the work he does. Trial doesn't go his way, maybe he doesn't get that. [¶] [DEFENSE COUNSEL]: Objection, that's improper insinuation when countered to the testimony. [¶] THE COURT: Sustained."
Aiello contends the prosecutor committed misconduct because his statement rendered Dr. Perez's critical evidence meaningless by suggesting he was willing to lie, and implied that Aiello's attorney tried to deceive the jury through the purchase of dubious testimony. He asserts that he was therefore deprived of his rights to a fair trial and due process.
2. Forfeiture
"Generally, a claim of prosecutorial misconduct is not reviewable on appeal unless the defendant makes a timely objection and asks the trial court to admonish the jury to disregard the prosecutor's improper remarks." (People v. Tafoya (2007) 42 Cal.4th 147, 176.)
Respondent contends that Aiello forfeited his challenge to the prosecutor's statement because, although defense counsel objected on the ground of "improper insinuation," he did not object on the ground of "prosecutor misconduct" or make an "assignment of misconduct," and he did not request that the jury be admonished to disregard the impropriety. Aiello counters that an admonition would not have eliminated the statement's prejudicial impact, and the idea that it would is a legal fiction. (Citing United States v. Bruton (1968) 391 U.S. 123, 133, fn. 8.) He also urges that, if defense counsel's failure to request an admonition has forfeited his claim of error, his counsel provided ineffective assistance.
We need not decide whether Aiello forfeited his challenge to the prosecutor's statement by failing to request an admonition. Even if there was a forfeiture, we would still examine the merits of Aiello's substantive arguments to decide whether relief should be afforded for ineffective assistance. We therefore proceed directly to the merits.
3. Merits
"Closing argument may be vigorous and may include opprobrious epithets when they are reasonably warranted by the evidence." (People v. Sandoval (1992) 4 Cal.4th 155, 180.) "Moreover, a prosecutor 'is free to remind the jurors that a paid witness may accordingly be biased and is also allowed to argue, from the evidence, that a witness's testimony is unbelievable, unsound, or even a patent "lie." ' " (People v. Parson (2008) 44 Cal.4th 332, 360; see Sandoval, supra, 4 Cal.4th at p. 180 [referring to testimony as "lies" is permissible if reasonably based on the evidence rather than personal belief].) Attacks on the credibility of expert witnesses based on evidence related to their compensation have therefore been repeatedly upheld. (Parson, supra, 44 Cal.4th at pp. 359, 362 [prosecutor permissibly argued that defense expert was a "spin doctor" and a "washed-up doctor who has now just become a professional witness" after finding that "he can make a living working in court" due to "people who will hire him to come in here and give these offhanded, glib opinions"]; People v. Arias (1996) 13 Cal.4th 92, 162, 181-182 [prosecutor permissibly argued that defense expert "had 'stretch[ed] [a principle] for a buck' " and urged the expert to " 'go some place else and sell your tonic water to another forum' "]; People v. Spector (2011) 194 Cal.App.4th 1335, 1407 [no prosecutorial misconduct where prosecutor referred to the defense experts as " 'paid-to-say witnesses' " and argued that the experts were " 'willing, for a price . . . to come in and say [the death was] a suicide' "].)
In People v. Cook (2006) 39 Cal.4th 566, 613 (Cook), a prosecutor commented in closing argument (in a penalty phase) on the fees paid to the defense expert witness, "stating, 'for 124 hours at $ 225 per hour, [the expert] comes up with something that excuses this man's responsibility.' " (Id. at p. 613.) The defendant claimed that the prosecutor's statement implied the expert " 'gave false testimony for a fee,' thereby impugning defense counsel's integrity for having, in effect, bought the expert's testimony." (Id. at pp. 613-614.) The court rejected this argument, observing that "although counsel may not denigrate the integrity of opposing counsel, an attorney is free to argue that the opinions of paid expert witnesses may be biased. [Citation.]" (Id. at p. 614.) Here too, the prosecutor's comments concerning the bias Dr. Perez might have for financial reasons was within the realm of reasonable argument.
Aiello asserts that the prosecutor in this case went beyond the conduct in Cook because he argued that Dr. Perez's testimony on behalf of Aiello reflected a willingness to lie, as shown by the prosecutor's statement, " 'I imagine [Dr. Perez] would want to keep his employment and keep getting paid for the work he does. Trial doesn't go his way, maybe he doesn't get that.' " But it is not inappropriate for a prosecutor to suggest a witness might be willing to lie based on evidence that the witness was being paid by the defense. (People v. Parson, supra, 44 Cal.4th at p. 360.)
In any event, the prosecutor's statement was not prejudicial in light of the appellate record. After the prosecutor elicited Dr. Perez's testimony concerning his fee, defense counsel on redirect elicited Dr. Perez's testimony that he would not testify falsely for financial gain: "[DEFENSE COUNSEL]: Okay. And the fact that we pay you for your time in this case, does that influence your mathematical calculations or conclusions that you've come to in this case? [¶] [DR. PEREZ]: No, absolutely not." Before the prosecutor made his comment about Dr. Perez's bias in closing argument, the court instructed the jury that the attorneys' closing arguments were not evidence, and that the jury was responsible for evaluating the credibility of the expert witnesses. (See CALCRIM Nos. 222, 232.) And when the prosecutor made his comment in closing argument, the trial court sustained defense counsel's objection, thereby indicating to the jury that defense counsel was correct that the prosecutor's insinuation was improper.
Moreover, the prosecutor's insinuation about Dr. Perez's bias was just a small part of his overall attack on the expert's testimony. The prosecutor also pointed out that Dr. Perez never went to the scene, his preparation was based on nothing more than three handwritten notes and someone else's work, his testimony was not important substantively, and documentary evidence indicated he was told by defense counsel to provide a defense that Aiello did not actually know he had hit Rivera, suggesting that Dr. Perez had not come to his own conclusions.
Aiello has failed to show that he received an unfair trial, or that there is any reasonable probability that he would have obtained a better outcome in the case if the prosecutor had not made his comment, or if the court had given an admonition at the time it sustained defense counsel's objection.
B. Probation Condition of Warrantless Search
Aiello next challenges the probation condition that he be "subject to search and seizure anytime of the day or night, you, your place of residence." Aiello contends the search condition was improper because it was not reasonably related to the crime for which he was convicted.
1. Forfeiture
A challenge to a warrantless search condition, which requires consideration of the crimes of conviction and the facts of the defendant's case, is forfeited if not raised in the trial court. (In re Josue S. (1999) 72 Cal.App.4th 168, 169-170.) Here, Aiello did not object to the search condition, even though it was discussed at the sentencing hearing between the court and the prosecutor. Because he failed to object in the trial court, the objection is forfeited.
2. Ineffective Assistance of Counsel
Aiello contends that counsel's failure to object constitutes ineffective assistance. To obtain relief on this basis, Aiello must demonstrate that (1) his attorney's representation fell below an objective standard of reasonableness, "outside the wide range of professionally competent assistance," and (2) there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 688, 690, 694.)
Courts have regularly denied ineffective assistance claims on direct appeal where, as here, the record is silent as to the basis for counsel's not objecting, unless there could not be any satisfactory explanation. (See, e.g., People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Here, defense counsel might have reasonably believed that the best strategy for Aiello was to accept a grant of probation, even with the imposition of a warrantless search condition, rather than risk the possibility that the court would agree to the prosecutor's request for a prison term.
Furthermore, defense counsel is not ineffective for failing to raise an objection that he or she reasonably determines would be meritless or fruitless. Here, Aiello has not shown that an objection to the probation condition would have had any merit.
A probation condition is generally valid unless it (1) has no relationship to the crime for which the defendant was convicted; (2) relates to conduct that is not criminal; and (3) requires or forbids conduct that is not reasonably related to future criminality. (People v. Olguin (2008) 45 Cal.4th 375, 379.) Therefore, "even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality. [Citation.]" (Id. at p. 380.)
Aiello contends the warrantless search condition was not reasonably related to preventing future criminal behavior because, although he reacted inappropriately when he fled the accident scene, he did not possess illicit drugs or commit a burglary or theft, and he had no prior criminal record. But that is not the law.
In People v. Balestra (1999) 76 Cal.App.4th 57, the trial court imposed a warrantless search condition on a defendant who pleaded guilty to elder abuse. The court of appeal found the condition valid, despite the lack of any relationship between the underlying offense and theft, narcotics, or firearms. (Id. at pp. 67-68.) The court explained: "As our Supreme Court has recently (and repeatedly) made clear, a warrantless search condition is intended to ensure that the subject thereof is obeying the fundamental condition of all grants of probation, that is, the usual requirement (as here) that a probationer 'obey all laws.' Thus, warrantless search conditions serve a valid rehabilitative purpose, and because such a search condition is necessarily justified by its rehabilitative purpose, it is of no moment whether the underlying offense is reasonably related to theft, narcotics, or firearms." (Id. at p. 67.)
Here, the standard probation conditions that the felony probationer "obey all laws" and not possess a firearm were imposed as conditions of Aiello's probation, without objection. The warrantless search condition was related to ensuring that Aiello satisfy these conditions and was therefore "necessarily justified by its rehabilitative purpose." (Balestra, supra, 76 Cal.App.4th at p. 67.)
Accordingly, Aiello has not shown that his trial attorney's conduct fell below the professional standard of care in failing to object, or that he suffered prejudice by counsel's failure to object. He has not established ineffective assistance of counsel.
III. DISPOSITION
The judgment is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.