Opinion
B224095
01-11-2012
THE PEOPLE, Plaintiff and Respondent, v. JONATHAN BLACKWELL et.al., Defendants and Appellants.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant Jonathan Blackwell. Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant Matthew I. Koontz. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA314867)
APPEALS from judgments of the Superior Court of Los Angeles County. Bob S. Bowers, Jr., Judge. Affirmed.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant Jonathan Blackwell.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant Matthew I. Koontz.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
Jonathan Blackwell (Blackwell) and Matthew Ian Koontz (Koontz) (collectively appellants) appeal from the judgments entered upon their convictions by jury of two counts of first degree murder (Pen. Code, § 187, subd. (a), counts 1-2), one count of attempted willful, deliberate and premeditated murder (§§ 664, subd. (a), 187, subd. (a), count 3), three counts of first degree residential robbery (§ 211, counts 4-6), and one count of first degree burglary (§ 459, count 7). The jury found to be true with respect to both appellants, as to counts 1 and 2, the special circumstance allegations of multiple murders (§ 190.2, subd. (a)(3)) and murder committed during a burglary (§ 190.2, subd. (a)(17)), and, as to all counts, the allegation that a principal was armed with a firearm within the meaning of section 12022, subdivision (a)(1). The jury also found to be true with respect to Blackwell, as to counts 1 through 6, the firearm allegations within the meaning of section 12022.53, subdivisions (b), (c), and (d), and as to count 7, the firearm allegation within the meaning of section 12022.5, subdivision (a). The trial court sentenced Blackwell to two consecutive life terms without the possibility of parole plus 82 years to life and Koontz to two consecutive life terms without the possibility of parole plus 10 years to life in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Koontz contends that (1) the trial court erroneously denied his Batson /Wheeler motion. Blackwell contends that (2) the trial court's instruction in accordance with CALJIC No. 2.92, that the jurors should consider the extent to which an eyewitness is certain of his identification, violated the federal constitutional guarantee of due process, and (3) the trial court's failure to sustain appellant's objection to the prosecution's misconduct in arguing flight to the jury violated federal due process. Both appellants contend that (4) their abstracts of judgment for the indeterminate term must be corrected to reflect the trial court's award of presentence custody credit.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson).
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
Koontz joins in the contentions of Blackwell to the extent applicable. (Cal. Rules of Court, rule 8.200(a)(5); see People v. Stone (1981) 117 Cal.App.3d 15, 19, fn. 5.)
We affirm.
FACTUAL BACKGROUND
We provide a truncated statement of facts, as most of the facts are not germane to the issues presented.
The prosecution's evidence
On December 30, 2006, near midnight, Kevin Schantz (Schantz) was at his apartment on South Gramercy Place. He was getting high when Koontz, a neighbor in the building with whom Schantz regularly "hung out" and did drugs, and Blackwell came by. They were wearing black.
Schantz and Koontz had been buying cocaine from Raul Cruz (Cruz). Koontz complained that the drugs he bought from Cruz had made him sick. Appellants said they were going to "jack [Cruz]," meaning get drugs from Cruz without paying for them, and asked if Schantz wanted to join them. Schantz declined because he was friends with Cruz. Schantz noted that neither appellant had weapons or mentioned violence, guns or breaking into Cruz's home.
Near 2:00 a.m., on December 31, 2006, a surveillance video from a 7-Eleven store on Wilshire Boulevard showed appellants wearing beanies in the store, one of them appearing to make a purchase.
At approximately 3:30 a.m., appellants arrived at Cruz's one-bedroom apartment, where he resided with his wife, Micaela Estrada (Estrada), his 17-year-old step-daughter J.C. and his nine year old son, H.C. J.C. ran into her parents' bedroom screaming for Cruz to wake up because "Mouse [was] trying to break in the window." J.C. knew Koontz as "Mouse," as he had been at their house many times.
Cruz and J.C. went into the living room. When Estrada joined them, she saw Cruz struggling with Koontz, who had a metal bar in his hand. Cruz was kicking and scratching Koontz, who had a crazy look on his face. Estrada saw a Black male standing at the apartment entrance, pointing a gun. He was dressed in black, wearing a black beanie and at least one glove. Estrada asked Koontz, "Are you crazy? Don't do this. What's wrong? What is your problem?"
Estrada said she was going to call the police, grabbed the phone in the dining room and dropped it. H.C. heard Koontz asking, "Where's the money?" Koontz told the gunman to "Shoot these Motherfuckers." Estrada ran into the kitchen, broke a window and screamed for help. She saw the gunman begin shooting and was the first person hit by a bullet. H.C. got scared and ran back to his bed and hid underneath his blanket. Peeking out, he saw Koontz enter the bedroom, take a wallet and walk away. J.C. ran to the kitchen and fell on Estrada. Cruz ran from the apartment. He and J.C. were shot and killed, and Estrada was wounded.
At approximately 3:30 a.m., Candido Garcia (Garcia) was awakened by Estrada's screams for help. He left his apartment and went down the stairs, where he saw Cruz falling face first. Garcia returned to his apartment, dressed and ran downstairs again. Outside of Cruz's apartment, he came face-to-face with a White male, leaving Cruz's apartment, wearing a white shirt, dark pants, and a black beanie, holding a crowbar and with blood on his arm. The man walked past Garcia and out of the complex. Garcia was unable to identify the man from a photographic six-pack. Garcia then looked into Cruz's apartment and saw Estrada on the floor holding J.C.
At 5:00 a.m., Koontz arrived back at Schantz's apartment with blood on his bandaged hand. He told Schantz that Cruz was dead.
Los Angeles Police Officer Mauricio Salazar received a description of a White male suspect named "Mouse" from Estrada. He went to Koontz's apartment building and waited. When he saw Koontz, Koontz initially denied living in the building and gave a false name and birth date. After questioning, he admitted his identity and that he had given a false birth date. Koontz was arrested.
At the police station, Koontz was observed to have numerous abrasions and bruises. There was also a puncture wound to one of Koontz's hands, which appeared to be an entry and exit gunshot wound.
At the hospital, Estrada immediately identified Koontz from a photographic six-pack. In a second six-pack containing a photograph of Blackwell in position No. three, Estrada said she was not sure, and did not identify anyone. She pointed to photograph No. two and said his face looked like the gunman, but his skin was too light. When asked if anyone else in this six-pack looked like Blackwell, Estrada answered in the negative.
Two days later, Estrada was shown the same six-pack. This time she focused her attention on suspect No. four based on his thin face. Detective Theodore Urena asked Estrada if there was any other person. At first, she said no but then focused on suspect No. three (Blackwell), saying he looked more similar to the gunman and concluded, "Yeah, I think it's him." H.C. identified Koontz but could not identify the Black man because H.C. said that he did not see him.
A search of Koontz's apartment uncovered a pair of black jeans, a shirt, a belt, black boots and a wash cloth, all containing blood stains. The blood stain on the jeans matched Cruz's blood sample.
A large quantity of white powder was collected from Cruz's apartment, some of which tested positive for cocaine. A glove was also recovered from Cruz's apartment which contained Koontz's blood, as did a bloody sock. Blood on paper currency in the apartment could not exclude Cruz's and Koontz's DNA. Koontz's genetic material, was found on a variety of the evidence recovered.
Blackwell was arrested in Oklahoma in August 2007.
The defense's evidence
After Koontz was taken into custody, he was taken to the emergency room for treatment. He had a "dangerously high" blood sugar level of 460. Dr. Paul Bronston testified that high blood sugar can cause disorientation and other physical problems as well as affect a person's ability to make judgments. Methamphetamine use can cause anxiety and cause psychosis, making the user paranoid or violent.
DISCUSSION
I. Batson/Wheeler
A. Background
1. Prospective Juror No. 33
During voir dire of Black, male prospective Juror No. 33, Koontz's attorney questioned him regarding his jury questionnaire response in which he stated that he could sentence a mass murderer to death. When asked if he required a certain number of murder victims in order to impose the death sentence, he responded that he would definitely not consider a death verdict for anyone who killed fewer than five people. When asked if he could impose the death penalty on a suspect who killed only one person, but for whom there were very aggravating circumstances, this prospective juror responded that he could consider voting for death. The prosecutor challenged prospective Juror No. 33 for cause, which challenge was denied. Later, the prosecutor exercised a peremptory challenge to excuse this prospective juror.
2. Prospective Juror No. 58
During voir dire, only Blackwell's counsel questioned Black, female prospective Juror No. 58. He inquired about her questionnaire response in which she stated that she had not thought about the death penalty before. When asked if she had given thought to it that day, she responded, "I don't think that I can be on this trial because I don't have a view." She said she was willing to listen to both sides and depending on what she heard, she could return either verdict.
Juror questionnaire, question No. 66, asked, "Under the law, an aider and abettor is just as guilty of a crime as the person who commits that crime. Do you feel that you can follow this law? If not, why?" Prospective Juror No. 58 responded, "Yes. If Found Guilty and Abettor is in Justi ce." The juror was not questioned about this response during voir dire. The prosecutor exercised a peremptory challenge excusing prospective Juror No. 58.
The spacing and capitalization in this quote is as it is contained in Juror No. 58's handwritten response to question No. 66.
3. Batson/Wheeler motion
Koontz's attorney made a Batson/Wheeler motion, arguing that "[t]he jury panel had two Black people in the box" and each was excused by the prosecutor. Two of the three peremptory challenges that the prosecutor had used to that point were to excuse the two Blacks. Neither of their responses to the jury questionnaires "appear [ed] to be strongly against any of the prosecution's position."
The trial court found that the defense had made out a prima facie case of racial motivation for excusing the prospective jurors, shifting the burden to the prosecution to provide a racially neutral explanation for its challenges.
The prosecutor explained that he challenged prospective Juror No. 33 because of that prospective juror's reticence to impose the death penalty except in cases of mass murder of five or more people. The trial court found that the People presented a plausible explanation for excusing prospective Juror No. 33 and allowed the peremptory challenge.
The reporter's transcript states that the trial court said that the "challenge for cause . . . will be allowed to stand." (Italics added.) We interpret this comment to be an inadvertent misstatement.
The prosecutor explained that he wanted prospective Juror No. 58 excused because of her response to question No. 66 in the jury questionnaire. He interpreted her response to mean that it was unjust to find an aider and abettor equally guilty of a crime as the direct perpetrator. The following colloquy ensued: "[DEFENSE COUNSEL]: [Referring to question No. 66 and the response]. Under the law, aider and abettor is just as guilty of a crime as the person that commits the crime. Do you feel you can follow the law. If not why? The [juror's] answer is yes. [¶] Now no one has to be clear, but she could have just found guilty and abettor. It appears that she's saying it is justice or with in justice. [¶] [PROSECUTOR]: Injustice? [¶] [DEFENSE COUNSEL]: No. No. There is a gap between the in and the justice. It's not one word. And if you look at all of her writings, when she's making it all one word, they are connected, there is no gap in her writing. And so what she is in effect saying is that if found guilty, it is essentially with in justice. [¶] I'm not trying to stretch evidence. It either merited further question' [sic].[¶] . . . [¶] . . . [DEFENSE COUNSEL]: I can understand there is confusion, but the prosecutor took the time to ask every prospective juror detailed questions and no question was asked of 58— [¶] [THE COURT]: What is your interpretation of this word, the last word in this sentence, what is your interpretation? [¶] [DEFENSE COUNSEL]: That the i-n and the word justice are separated. The primary thing is she said yes, she would follow the law. [¶] [CODEFENSE COUNSEL]: In other words, Your Honor, it is not an injustice, but it is in justice. . . . That's what it looks like from the space. [¶] [DEFENSE COUNSEL]: The main answer is yes, yes, I will follow the law. This is a pretext to try to get rid of all of the Blacks. And my client, even though he is Caucasian, he has the right to have Black people on his jury. Submit it, Your Honor. [¶] [CODEFENSE COUNSEL]: If the answer was no, Your Honor, it could be interpreted the way the People are saying it but this juror says yes. [¶] [PROSECUTOR]: There's a lot of interpretation that can be made from anyone who reads this, but it was our interpretation that injustice is injustice. Submit it."
The trial court found the prosecutor's explanation "reasonable from the People's perspective" and denied the Batson/Wheeler motion, notwithstanding the fact that the trial court "agreed[d] with the defense interpretation" of prospective Juror No. 58's response to question No. 66. It found the People's explanation to be "a rational conclusion" and therefore race neutral and denied the motion.
B. Contentions
Koontz contends that the trial court erred in denying his Batson/Wheeler motion. He argues that the prosecutor's reason for excusing prospective Juror No. 58 was "a subterfuge for an impermissibly, ethnically motivated peremptory challenge," which denied him his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments to the federal Constitution and their California counterparts. Koontz claims that the prosecutor's explanation for excusing prospective Juror No. 58 is inconsistent with that juror's response to question No. 66, and the prosecutor failed to question the prospective juror about the meaning of her answer. This contention lacks merit.
C. Principles of nondiscriminatory use of peremptory challenges
1. Constitutional basis for nondiscriminatory jury selection
"[T]he use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution" (Wheeler, supra, 22 Cal.3d at pp. 276-277) and the equal protection clause of the Fourteenth Amendment to the United States Constitution (Batson, supra, 476 U.S. at p. 89; Miller-El v. Dretke (2005) 545 U.S. 231, 238). A claim under Batson is essentially the same as a claim made under Wheeler. (See People v. Yeoman (2003) 31 Cal.4th 93, 117.)
Blacks are a cognizable group for Wheeler purposes, and Black women are a cognizable subgroup. (See Whitus v. Georgia (1967) 385 U.S. 545, 549-550; People v. Clair (1992) 2 Cal.4th 629, 652.) The striking of a single juror for racial reasons violates equal protection, even if other Black jurors are seated (People v. Fuentes (1991) 54 Cal.3d 707, 715), though challenging one or two prospective jurors of the same racial or ethnic group as a defendant, even when the panel contains no other members of the group, does not establish a prima facie case unless there is significant supporting evidence. (See People v. Christopher (1991) 1 Cal.App.4th 666, 673.)
2. Standard of review
"'Review of a trial court's denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions. [Citation.] ". . . We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]" [Citations.]'" (People v. Taylor (2009) 47 Cal.4th 850, 886; People v. Crittenden (1994) 9 Cal.4th 83, 117.)
"We also bear in mind that peremptory challenges are not challenges for cause— they are peremptory. We have said that such challenges may be made on an 'apparently trivial' or 'highly speculative' basis." (People v. Jones (1998) 17 Cal.4th 279, 294.) "Indeed, they may be made '"without reason or for no reason, arbitrarily and capriciously."'" (Ibid.)The prosecutor's explanation need not be persuasive or "even plausible." (Purkett v. Elem (1995) 514 U.S. 765, 767-768; People v. Reynoso (2003) 31 Cal.4th 903, 916.)
3. Batson/Wheeler Analysis
The analysis for determining whether group bias motivated the prosecution's use of its peremptory challenges is well established. "'First, the defendant must make out a prima facie case "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." [Citation.] Second, once the defendant has made out a prima facie case, the "burden shifts to the State to explain adequately the racial exclusion" by offering permissible race-neutral justifications for the strikes. [Citations.] Third, "[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination."' [Citation.]" (People v. Mills (2010) 48 Cal.4th 158, 173 (Mills).)
In the first stage of the analysis, a defendant establishes a prima facie case of discrimination "by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." (Johnson v. California (2005) 545 U.S. 162, 170; People v. Hawthorne (2009) 46 Cal.4th 67, 79, disapproved on other grounds in People v. McKinnon (2011) 52 Cal.4th 610.) Here, the trial court concluded that Koontz's showing that the prosecutor had used two of the three peremptory challenges that he exercised to excuse the only two Blacks in the jury box made a prima facie showing of discrimination, thereby shifting to the prosecution the obligation to provide a race-neutral explanation for its peremptory challenges to a member of a cognizable group.
The second stage of the Batson/Wheeler analysis is to determine whether the prosecutor provided a race-neutral explanation for why the peremptory challenge was used. The prosecutor here stated that he exercised his challenge to prospective Juror No. 58 based upon his interpretation of her response to question No. 66 in the juror questionnaire, where she stated that she believed it "in justice" to make an aider and abettor just as guilty as the perpetrator. This justification for exercising the peremptory challenge is race neutral.
"'At the third stage of the Wheeler/Batson inquiry, "the issue comes down to whether the trial court finds the prosecutor's race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy."'" (Mills, supra, 48 Cal.4th at pp. 174-175; see also Miller-El v. Cockrell (2003) 537 U.S. 322, 339.) The court may draw upon its observations of the voir dire, its own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office who employs him or her. (Mills, supra, at p. 175; People v. Lenix (2008) 44 Cal.4th 602, 613.)
Appellant's Batson/Wheeler claim is premised upon the prosecutor's exercise of a single peremptory challenge to excuse prospective Juror No. 58, a Black woman. To premise such a claim on the challenge to a single member of a group requires significant supporting evidence. (People v. Bell (2007) 40 Cal.4th 582, 598, fn. 3 ["Although circumstances may be imagined in which a prima facie case could be shown on the basis of a single excusal, in the ordinary case, including this one, to make a prima facie case after the excusal of only one or two members of a group is very difficult"]; People v. Christopher, supra, 1 Cal.App.4th at p. 673.) Here, there is substantial evidence to support the trial court's finding that the prosecutor had a credible, neutral explanation for his peremptory challenge to Juror No. 58.
While appellant appears to claim that the prosecutor's peremptory challenge of a Black man, Juror No. 33, is part of his claim, he does not argue or present any evidence in his brief that that challenge was racially motivated. A point asserted on appeal without authority or argument will not be considered. (People. Wilkinson (2004) 33 Cal.4th 821, 846, fn. 9; In re David D. (1997) 52 Cal.App.4th 304, 311, fn. 7.) In any event, Juror No. 33's reluctance to impose the death penalty, as well as the prosecutor's prior challenge for cause, are adequate nonracially motivated bases for the peremptory challenge.
The prosecutor asserted that he excused prospective Juror No. 58 because of her answer to question No. 66 in the questionnaire, which asked: "Under the law, an aider and abettor is just as guilty of a crime as the person who commits that crime. Do you feel that you can follow this law? If not, why?" Prospective Juror No. 58 responded, "Yes. If Found Guilty and Abettor is in Justi ce." The prosecutor interpreted this response to mean that while the juror stated that she could follow this law, she felt that it was unjust that an aider and abettor should be as guilty as the perpetrator. He read the word(s) "in Justi ce" as one word "injustice," despite the space between the words and the capitalization of the word "Justice." He argues that there was another space in the word "Justice" between the "i" and the "ce," showing that the space between "in" and "Justice" did not mean they were two separate words. Further, the capitalization of the word "Justice" was insignificant because Juror No. 58 capitalized several other words in the middle of that sentence. Appellant argues that the words "in Justice" are two separate words and mean that it is unjust to make an aider and abettor as guilty as the perpetrator.
While the People point to other potential reasons why excluding prospective Juror No. 58 was justified, we agree with appellant that reasons that were not articulated by the prosecutor at the Batson/Wheeler hearing are not germane. It is the subjective, articulated reasons for exercising the peremptory challenges that are relevant. (People v. Reynoso, supra, 31 Cal.4th at p. 924.) Justifiable reasons that were not the actual reasons are irrelevant.
We find both constructions to be strained, although plausible. The prospective juror's meaning is unclear. We therefore cannot say that the prosecutor's interpretation is wrong or that the trial court's ruling is unsupported by substantial evidence.
Koontz argues that his interpretation is the only one that makes sense because prospective Juror No. 58 prefaced her ambiguous comment with an affirmative answer to the question of whether she could follow the law that an aider and abettor is just as guilty as the perpetrator. We disagree. It is a plausible interpretation that the juror meant that she could follow the instruction but found it to be unjust. While her agreement to follow such an instruction might preclude a challenge for cause, it could justify as race neutral a peremptory challenge. The prosecutor might not want a juror who considered a rule unfair having to apply it, even if they claimed the ability to do so.
Koontz also argues that we must conduct a comparative analysis of prospective Juror No. 58 and other prospective jurors and impaneled jurors. (People v. Lenix, supra, 44 Cal.4th at p. 607.) But Koontz fails to present argument showing that such an analysis supports his position that the peremptory challenge to that juror was racially motivated, nor was that argument made in the trial court. In any event, unlike prospective Juror No. 58, none of the jurors seated in this matter responded to question No. 66 with anything other than an unqualified "Yes."
Finally, Koontz argues that the prosecutor's failure to question prospective Juror No. 58 regarding her response to question No. 66 creates a strong inference that the motive for removing that juror was racial. While the failure to question a prospective juror on an issue of concern to the prosecutor might be a factor in finding racial motivation in some cases, we do not find that to be the case here. Each juror gave answers to a fairly lengthy juror questionnaire, providing substantial information about the juror before voir dire even began. Numerous prospective jurors were excused simply based upon the answers to those questions. A prosecutor could reasonably conclude that the unassisted written answers to those questions provided a better barometer of the juror's true beliefs than further questioning, by which skilled counsel can lead a juror to respond in a way that might make the juror more acceptable for jury service, but less accurate of his or her true beliefs. Further, there is no obligation to question a juror about answers to question on the questionnaire.
II. Jury Instruction in accordance with CALJIC No. 2.92
A. Background
The trial court instructed the jury in accordance with CALJIC No. 2.92 on the factors to be considered in weighing eyewitness testimony. One of these factors is, "The extent to which the witness is either certain or uncertain of the identification." None of the parties registered any objection to this instruction.
The entire CALJIC No. 2.92 instruction as given is as follows: "Eyewitness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crime[s] charged. In determining the weight to be given eyewitness identification testimony, you should consider the believability of the eyewitness as well as other factors which bear upon the accuracy of the witness' identification of the defendant, including, but not limited to, any of the following: [¶] The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act; [¶] The stress, if any, to which the witness was subjected at the time of the observation; [¶] The witness' ability, following the observation, to provide a description of the perpetrator of the act; [¶] The extent to which the defendant either fits or does not fit the description of the perpetrator previously given by the witness; [¶] The witness' capacity to make an identification; [¶] Evidence relating to the witness' ability to identify other alleged perpetrators of the criminal act; [¶] Whether the witness was able to identify the alleged perpetrator in a photographic or physical lineup; [¶] The period of time between the alleged criminal act and the witness' identification; [¶] Whether the witness had prior contacts with the alleged perpetrator; [¶] The extent to which the witness is either certain or uncertain of the identification; [¶] Whether the witness' identification is in fact the product of his/her own recollection; and [¶] Any other evidence relating to the witness' ability to make an identification." (Italics added.)
--------
B. Contentions
Blackwell contends that the trial court's recitation of the portion of CALJIC No. 2.92 dealing with the certainty of the identification violated federal due process. He argues that recent scientific and empirical studies indicate a lack of correlation between certainty and accuracy of an identification.
The People contend that Blackwell has forfeited this claim by failing to object to the trial court's reading of CALJIC No. 2.92 or requesting a modification.
C. Forfeiture
"'A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.'" (People v. Hart (1999) 20 Cal.4th 546, 622; see also People v. Bolin (1998) 18 Cal.4th 297, 328; People v. Ward (2005) 36 Cal.4th 186, 213-214 ["[w]ith respect to the proposed modification [of CALJIC No. 2.92], defendant never requested the additions he now asserts should have been given; and we find no basis for imposing a sua sponte duty to modify CALJIC No. 2.92 as now asserted"]; People v. Gonzalez (2002) 99 Cal.App.4th 475, 483.) Because Blackwell did not request a modification of CALJIC No. 2.92 in the trial court, he has failed to preserve this claim for appeal.
D. Propriety of "certainty factor"
If this issue had been properly preserved for appeal, we would nonetheless find it to be without merit. In the seminal case of People v. Wright (1988) 45 Cal.3d 1126 (Wright), our Supreme Court endorsed a CALJIC No. 2.92 type instruction, concluding that "a proper instruction on eyewitness identification factors should focus the jury's attention on facts relevant to its determination of the existence of reasonable doubt regarding identification, by listing, in a neutral manner, the relevant factors supported by the evidence. [¶] The instruction should not take a position as to the impact of each of the psychological factors listed." (Wright, supra, at p. 1141.) "Expert witnesses may be called by both parties, thus enabling the jury to hear both sides of the scientific theories regarding eyewitness identifications. . . . [¶] . . . [¶] . . . [T]he listing of factors to be considered by the jury will sufficiently bring to the jury's attention the appropriate factors, and . . . an explanation of the effects of those factors is best left to argument by counsel, cross-examination of the eyewitnesses, and expert testimony where appropriate." (Id. at pp. 1142-1143, fns. omitted.) In dissent in Wright, Justice Mosk pointed to studies indicating the lack of correlation between certainty and accuracy of witness identifications. (Id. at p. 1159.)
In the face of these already existing studies, in People v. Johnson (1992) 3 Cal.4th 1183 (Johnson), our Supreme Court considered the propriety of the "certainty of identification" factor in CALJIC No. 2.92. There, the defendant argued that there was no evidence to justify giving CALJIC No. 2.92, because the only evidence with regard to certainty of identification was the expert testimony of a psychology professor, who testified that there was little or no correlation between a witness's confidence in his or her memory and its accuracy. (Johnson, supra, at pp. 1210, 1231.) The defendant argued that that testimony did not support the instruction, but contradicted it. The Supreme Court rejected the defendant's argument, concluding that there was no error in instructing on the "'certainty'" factor. (Id. at p. 1232.)
We have been directed to no authority indicating that the Supreme Court is vacillating on its Johnson holding. (See People v. Ward, supra, 36 Cal.4th at p. 214 [defendant's expert testified that there was no correlation between certainty and accuracy of an identification and CALJIC No. 2.92 permitted consideration of this testimony]; see also People v. Fudge (1994) 7 Cal.4th 1075, 1110 [reiterating that defendant is entitled to an instruction that lists in a neutral manner factors related a determination of reasonable doubt regarding identification].) We are therefore bound by Johnson's upholding the "certainty of identification" factor. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
E. Harmless error
Even if our Supreme Court were to change directions and conclude that the certainty factor should be removed from CALJIC No. 2.92, instructing the jury with CALJIC No. 2.92 with the certainty factor included was harmless. It is not reasonably likely that had that factor been removed from the instruction a result more favorable to Blackwell would have ensued. (People v. Carter (2003) 30 Cal.4th 1166, 1221 [evidentiary instruction evaluated under state standard]; People v. Watson (1956) 46 Cal.2d 818, 836.)
First, there was substantial evidence that Blackwell was involved in the murders. Though Estrada's identification of him was weak, Blackwell was present at Schantz's residence before the shooting when appellants stated their intention to "jack" Cruz. At 2:00 a.m., shortly before the murders, Blackwell was seen in a video surveillance recording at a 7-Eleven, wearing dark clothing and a dark beanie, fitting the description that Estrada gave of the person doing the shooting.
Second, to the extent Blackwell contends that the consensus of more recent scientific evidence undermines the assumption that the more certain a witness is of the identity of a person, the more accurate the identification, CALJIC No. 2.92 does not suggest otherwise. It states in a neutral manner that these factors bear upon the accuracy of identifications, leaving it to counsel to put on evidence and argue how these factors operate in their clients' favor.
Third, even if CALJIC No. 2.92 is interpreted by the jury as Blackwell suggests, that the more certain an eyewitness identification the greater the likelihood of accuracy, giving it helped Blackwell, it did not hurt him. The only identification of Blackwell at the murder scene was Estrada. Her identification was uncertain, and hence likely to have been construed by the jury as being inaccurate. On two occasions she was shown a photographic six-pack containing Blackwell's likeness. In both cases she initially selected other suspects. In the second instance, she only selected Blackwell as the gunman as a second choice, after the detective asked if there was any other person.
Lastly, other instructions mitigated the effect of the certainty factor. The trial court instructed the jurors that they were the "sole judges of the believability of a witness[,] . . . the weight to be given the testimony of each," that in determining believability of a witness they could consider the witness's opportunity or ability to see and hear any matter about which he or she testifies and the witness's ability to remember and relate those matters here in court (CALJIC No. 2.20), that a witness's observations may be unreliable, that "[t]wo persons witnessing an incident or a transaction often will see or hear it differently" (CALJIC No. 2.21.1). The record does not reflect any jury confusion on the subject of identification. Also, defense counsel vigorously argued the weaknesses in the identifications. The jury nonetheless believed the eyewitnesses.
III. Prosecutorial misconduct
A. Background
The trial court refused to instruct the jury on flight reflecting consciousness of guilt in accordance with CALJIC No. 2.52 due to a lack of evidence of the circumstances of Blackwell leaving the state. During closing argument, on multiple occasions, the prosecutor referred to the evidence of Blackwell's whereabouts after the crime. At the end of his opening argument, the prosecutor argued, "We know that defendant Blackwell takes off, nowhere to be seen. According to Kevin Schantz, he was hanging out with them all the time, that group on the sixth floor. After this incident, [he is] nowhere to be seen. About 9 months, 10 months later he's sought in Oklahoma." (Italics added.)
After the prosecutor concluded his opening argument, the jury took a break and Blackwell's counsel stated: "I object to [t]his, the way [the prosecution] characterized Mr. Blackwell's being in another state. I know the court indicated that he could not argue consciousness of guilt in regards to a flight instruction, but the way he characterized it was pretty much saying so, especially since it was sort of tied into Mr. Koontz changing his name, and that's consciousness of guilty. Although he didn't say the exact words, he was definitely implying, through his argument, that he had flown the coop, and that was a consciousness of guilt. So I object."
The trial court overruled the objection, stating: "I believe [the prosecution] said it was 7 or 9 months later when [appellant] was in Oklahoma. I think that kind of takes the sting off. Let's put it that way."
In his rebuttal, the prosecutor described what Blackwell did as shooter, and said, "But after December 31, 2006, Jonathan Blackwell is not seen again. Where is he found?" The prosecutor ended his rebuttal, in describing how actions speak louder than words, stating that Blackwell "disappears," Schantz never sees him again, and Blackwell is found in Oklahoma eight or nine months later.
B. Contention
Blackwell contends that the trial court's failure to sustain his objection to the prosecutor's misconduct in arguing flight as consciousness of guilt violated due process. He argues that the prosecutor's argument to the jury that Blackwell's absence after the murders and subsequent arrest in Oklahoma months later amounted to arguing consciousness of guilt, when there was no evidence as to how or when he left the crime scene and insufficient evidence he was even present at the murder, a predicate for a consciousness of guilt argument.
The People contend that Blackwell forfeited his claim of prosecutorial misconduct.
C. Forfeiture
"Generally, '"a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety."' [Citation.] This general rule, however, does not apply if a defendant's objection or request for admonition would have been futile or would not have cured the harm caused by the misconduct; nor does it apply when the trial court promptly overrules an objection and the defendant has no opportunity to request an admonition. [Citation.]" (People v. McDermott (2002) 28 Cal.4th 946, 1001; People v. Carter (2005) 36 Cal.4th 1114, 1204.)
Here, Blackwell did not timely object when the challenged comments by the prosecutor were first made nor did he request an admonition at any time. This would ordinarily forfeit the misconduct claim. But Blackwell asserts there was no forfeiture because the trial court's overruling of the belated objection suggests that an earlier objection would have been futile. We disagree.
The trial court's comment at the time of overruling the objection does not indicate that it would not have given an admonition if requested. It stated that "the sting" was taken out of the prosecutor's challenged comments because the prosecutor made clear that he was talking about Blackwell's whereabouts months after the murders, not that he fled the murder scene at the time of the murders.
D. Misconduct
Even if this claim had not been forfeited, we would nonetheless reject it as lacking merit. The well-established federal and state standards for assessing a claim of prosecutorial misconduct were set forth by our Supreme Court in People v. Samayoa (1997) 15 Cal.4th 795, 841: "'"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.] . . . Additionally, when the claim [of prosecutorial misconduct] focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]"
We agree with the People that there was no misconduct on the part of the prosecutor during argument so as to infect the trial with fundamental unfairness. In arguing to the jury, a prosecutor has broad discretion to express his or her view of the evidence and the inferences and deductions that may be drawn from it. (People v. Sims (1993) 5 Cal.4th 405, 463; People v. Hardy (1969) 271 Cal.App.2d 322, 330.) While the prosecutor may not go beyond the evidence before the jury (People v. Coddington (2000) 23 Cal.4th 529, 600, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13), or mischaracterize the evidence (People v. Hill (1998) 17 Cal.4th 800, 823), he did none of those things here. The prosecutor did not ask the jury to infer consciousness of guilt. He only argued that Blackwell was arrested in Oklahoma eight months after the murders and failed to socialize with Schantz afterwards. These facts were admitted in evidence without Blackwell's objection, though their relevance is questionable without a foundation that they reflected flight. Having failed to object to that evidence at trial, Blackwell cannot complain that the prosecutor pointed it out to the jury in closing. Contrary to Blackwell's argument, the trial court did not order that the prosecutor could not argue these facts by giving the flight instruction. Blackwell's counsel was free to argue to the jury that there was no evidence about why or when Blackwell was in Oklahoma, from which any adverse evidence could be drawn.
We also reject Blackwell's claim that the prosecutor's argument was improper because it is improper to argue consciousness of guilt where there is an issue of the identity of the perpetrator. This claim was rejected long ago. (People v. Mason (1991) 52 Cal.3d 909, 943.)
E. Harmless error
Even if the prosecutors' comments were improper, they were harmless. Prosecutorial error is prejudicial where it is "reasonably probable that a result more favorable to the appealing party would have been reached" had the prosecutor not made the improper comments. (People v. Watson, supra, 46 Cal.2d at p. 836; People v. Garcia (1984) 160 Cal.App.3d 82, 93-94, fn. 12 [prosecutorial misconduct in exposing a jury to improper factual matters usually tested under the Watson standard].) Here, the prosecutor made no argument that was not based on evidence before the jury. Hence, the jury was free to have concluded that Blackwell was on the run from authorities when caught in Oklahoma, even without argument. Further, as discussed in part IIE, ante, there was convincing evidence that Blackwell was the gunman in the murders.
Further, the jury was instructed that their decision must be based on the evidence and that the comments of counsel were not evidence. We presume that the jury followed these instructions. (People v. Horton (1995) 11 Cal.4th 1068, 1121.)
IV. Custody credits
A. Background
The judgment against each appellant is contained in two abstracts of judgment, Judicial Council form No. CR-290 for the determinate portion of the sentence and Judicial Council form No. CR-292 for the indeterminate portion of the sentence. Each form cross-references the other. The abstract of judgment for the determinate portion of the sentence has the box checked which states "Additional indeterminate term (see CR- 292)" and the abstract of judgment for the indeterminate portion of the sentence has the box checked which states "Additional determinate term (see CR-290)."
The trial court awarded custody credits of 981 days and 1,195 days to Blackwell and Koontz, respectively, on the abstracts of judgment for the determinate term, which the trial court stayed. The indeterminate term abstract of judgment does not reflect the credits.
B. Contention
Appellants contend that the abstracts of judgment for the indeterminate term must be corrected to reflect the award of custody credits ordered by the trial court. They argue that because the determinate sentence, on which abstract the actual custody credits are included was stayed, "an award of presentence credit only to the judgment of the (stayed) determinate term is, effectively, a denial of the award." This contention lacks merit.
C. Allocation of credits
All of the parties apparently agree that custody credits can only be awarded once for all of the multiple offenses for which consecutive sentences are imposed. Statutory and case authority seem to support this position. (§ 2900.5, subd. (b); People v. Cooksey (2002) 95 Cal.App.4th 1407, 1414.)
None of the parties have provided any authority, nor have we uncovered any as to whether the credits should be awarded on the determinate or indeterminate sentences. This issue is surely a tempest in a teapot in the case before us. Regardless where the credits are applied, appellants' term in prison will not be affected one iota. Applying the credits to the indeterminate term will not effectively allow the custody credits to be utilized, as appellants were sentenced to life without the possibility of parole. Hence, they will not receive any benefit from the credits on the indeterminate term, any more than they would on the stayed determinate term. In fact, applying the custody credits to the determinate sentence, even though stayed, presents a greater, albeit remote, possibility that appellants will receive the benefit of the credits should the stayed terms be implemented in the future because of a reversal of the indeterminate terms.
Moreover, while each appellant's sentence is contained on two abstracts of judgment, each abstract cross-references to the other, indicating that they are part of a single judgment and sentence. Thus, there is no risk that the credits would be applied more than once.
DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
ASHMANN-GERST
We concur:
____________________________, P. J.
BOREN
____________________________, J.
DOI TODD