Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F04772
RAYE, J.Defendant Michael James Davey killed 20-year-old Kathleen Springer in a traffic collision. Based on evidence defendant was driving erratically and speeding and had taken two different kinds of pain medication, the jury found him guilty of gross negligence vehicular manslaughter. (Pen. Code, § 192, subd. (c)(1).) The sole issue on appeal is whether remarks the prosecutor made in rebuttal to defendant’s closing argument constitute the type of egregious misconduct that requires reversal of the jury verdict. Considered in context, we conclude the prosecutor’s rebuttal did not constitute misconduct. We affirm.
FACTS
A brief synopsis of the facts is all that is necessary to frame our discussion of prosecutorial misconduct. On October 29, 2004, several witnesses observed defendant passing multiple vehicles on Highway 160; passing vehicles in illegal passing zones, driving over the double yellow line, and entering the left turn lane to pass; “peeking” his truck over the centerline; tailgating; and weaving inside his lane. Eyewitness John Fedorchak testified that for the first time in his life, he had been so concerned about a driver’s erratic and aggressive driving that he called 911, and he had been on his cell phone with the operator when he saw defendant cross over the center double-yellow line by about two to four feet and strike a towed travel trailer. Lucille Kinnaman also testified that after defendant passed her in his truck, she called her husband and told him that she thought the driver was going to kill someone. He did.
The decedent’s car was one of five vehicles that were involved in the collision. The Volvo she was driving sustained such heavy damage that it took rescue personnel over an hour to extract her; she sustained horrific injuries and died later that night during emergency surgery.
At the scene of the collision, defendant’s speech was slow and “thick tongued.” An eyewitness reported seeing defendant talking to fire personnel. He was pacing and praying that the victim in the Volvo “wouldn’t pass away because he said he was driving carelessly and passing people and shouldn’t have been driving like that.” He admitted to a California Highway Patrol officer that he had crossed the centerline prior to the collision, and that he had taken prescription painkillers at 3:30 p.m. When the officer asked defendant what had happened, his first response was that “he [defendant] was being an asshole.” He mentioned the sun had been in his eyes.
At trial, defendant testified in his own defense. He insisted the pain medications, which he had taken at 7:30 a.m., between 10:30 a.m. and 11:00 a.m., and at 3:00 p.m., did not impair his driving. He acknowledged, however, that the pamphlet that accompanied his prescriptions contained a warning about driving while taking the medication. He denied the eyewitness accounts of his driving. He reported that he was very familiar with the road, he had safely passed other vehicles three miles before the collision, and he crashed because the sun was in his eyes.
The jury deliberated for less than three hours and convicted defendant of one count of gross negligence vehicular manslaughter. (Pen. Code, § 192, subd. (c)(1).) The trial court sentenced him to the middle term of four years in state prison.
DISCUSSION
The prosecutor has a solemn obligation to protect a criminal defendant’s constitutional right to a fair trial. It is as much the prosecutor’s duty “to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” (Berger v. United States (1935) 295 U.S. 78, 88 [79 L.Ed. 1314].) The prosecutor’s responsibility is to seek justice, not merely convictions.
Nevertheless, a prosecutor is given wide latitude during closing argument and it is entirely proper for him to argue vigorously that the evidence shows the defendant is guilty of all of the elements of the charged offense. (People v. Mincey (1992) 2 Cal.4th 408, 447-448; People v. Wharton (1991) 53 Cal.3d 522, 567.) “[A] court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.” (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 647 [40 L.Ed.2d 431].)
Defendant raises no complaints about the prosecutor’s opening argument. The prosecutor argued that the evidence established beyond a reasonable doubt that defendant was guilty of gross negligence vehicular manslaughter as charged and not the lesser included offense of ordinary negligence vehicular manslaughter based on evidence that he had been under the influence of prescription pain medications at the time of the collision, the various eyewitness accounts describing his aggressive driving prior to the collision, and evidence of his own statements and conduct immediately following the collision. Without objection, the prosecutor referred to the lesser included offense as “misdemeanor negligence.”
Defense counsel thereafter urged the jury to find defendant guilty of ordinary negligence. He conceded defendant’s negligence caused the victim’s death, but he rejected the notion that his driving constituted gross negligence. Defense counsel argued: “Now, we’re not talking about Mr. Davey walking free, letting him go as the prosecution would say. No. It’s a negligent act causing death. People that use ordinary care do not cross the centerline. We have laws like that in order to prevent things like this from happening. He crossed the centerline and hit this trailer.
“The question becomes whether he was being intentionally reckless when he crossed the centerline or whether it was a mistake in judgment insofar as he didn’t intend, because the prosecution’s going to look at the driving that occurred before as circumstantial evidence for you to imply something here at the moment of truth. And it just isn’t there. It was an accident. He crossed the centerline inadvertently, by mistake in judgment, and caused this horrible accident.”
In rebuttal, the prosecutor needed to convince the jury that defendant was guilty as charged of the greater offense of gross negligence vehicular manslaughter and not ordinary negligence vehicular manslaughter as defendant had argued. He began by pointing out to the jury that it can be appealing when a defendant admits he did it. Implying that jurors can be seduced by such an admission, the prosecutor warned them that once a defendant admits the act he then urges the jury to exonerate him of the greater offense. In this case, the prosecutor reminded them, defendant asked them to find him innocent of gross negligence and convict him only of “simple negligent vehicular manslaughter.”
The prosecutor entreated the jury to reject the ploy. It is true the prosecutor became vigorous in his rebuttal. “To call what Michael Davey did on October 29th a misdemeanor is offensive. And if you were to do as Mr. Conner says they would dance out of these doors. In this scenario in this case there is essentially no difference between saying he’s guilty of a misdemeanor and just straight acquitting him. Okay. So there’s some appeal to that.
“And we have to take the big step back and see the forest for the trees when we hear it because it’s -- it’s appealing at first and it seems like they’re conceding everything. So that must be true; right? But it’s not. So I want to start with that understanding.”
In final summation, the prosecutor concluded: “And I am asking you to find the defendant guilty of count one, driving -- committing vehicular manslaughter with gross negligence, not a misdemeanor. Okay. Not a misdemeanor. This case is absolutely not a misdemeanor.
“So I’m asking you to force the defendant to take responsibility for what he did. Force him to take full responsibility for the death of Katie Springer. I’m going to ask you to find him guilty of count one.”
We must review the prosecutor’s remarks within the state and federal standards defining 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. 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. . . . Additionally, when 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. Ochoa (1998) 19 Cal.4th 353, 427, internal quotation marks and citations omitted, quoting People v. Samayoa (1997) 15 Cal.4th 795, 841.)
Defendant analogizes the prosecutor’s argument to the blatant misconduct described in a sanity trial in People v. Sorenson (1964) 231 Cal.App.2d 88 (Sorenson). The analogy fails. In Sorenson, the defendant entered a plea of not guilty by reason of insanity to charges that he had written three bad checks. (Id. at p. 90.) He had a history of writing bad checks. (Ibid.) The prosecutor argued: “‘[W]e get caught and we tried this other road before, and it doesn’t work so now let’s have a new plea, let’s try something different, nothing worked before, let’s try a plea of insanity this time. “If I am going to be confined for anything at all, let’s make it some time in the hospital instead of jail.” If the doctor feels he is not in one of these states of being manic depressive this particular minute, this turns him loose.’” (Id. at p. 91.)
We found the prosecutor’s argument “obvious misconduct” for several reasons. (Sorenson, supra, 231 Cal.App.2d at p. 91.) We explained: “Defendant’s immediate or ultimate destination -- whether state hospital, state prison or to be ‘turned loose’ -- was a judgment which the law reposed in other hands than the jury’s. [Fn. omitted.] The prosecutor’s statement was a thinly disguised appeal to the jurors to abdicate their lawful role and to decide the issue of sanity in terms of their own opinion that imprisonment, not hospitalization, was defendant’s proper fate. In effect, the district attorney was urging the jury to usurp functions reposed by statute in other hands. The statement was an appeal to prejudice, an attempt to arouse aversion toward a verdict which might ‘turn him loose’ to victimize innocent people with more bad checks. Finally, the argument misstated the law, telling the jury that after defendant’s commitment to a state hospital, ‘the doctor’ could release him. Penal Code sections 1026 and 1026a, to the contrary, prevent the release of a defendant without a judicial hearing and a finding of restoration to sanity.” (Id. at p. 92.)
The prosecutor’s rebuttal in this case had none of the infirmities we identified in Sorenson. Defendant insists the prosecutor’s remark that a conviction of a misdemeanor, the lesser included offense, would allow defendant to “dance out of these doors” had the same effect on this jury as the prosecutor’s argument in Sorenson that the defendant would prefer time in a hospital to time in jail and that the doctor had the discretion to set him loose. But in our case the prosecutor did not appeal to the jurors to abdicate their lawful role or to usurp the sentencing function of the judge. There was no appeal to prejudice, and he did not misstate the law. We reject defendant’s attempt to torture a reasonable interpretation of the prosecutor’s remarks to fit the Sorenson template.
The prosecutor’s rebuttal followed an impassioned argument by the defense to find defendant guilty of ordinary negligence and to reject the prosecutor’s argument that defendant was guilty of gross negligence. The use of the terminology “misdemeanor negligence” was merely the prosecutor’s shorthand phraseology for the lesser included offense of ordinary negligence vehicular manslaughter. Defendant failed to object to the phraseology during argument probably because there was no valid objection to be raised. The shorthand does not refer to punishment but to the reality that the lesser included offense was a misdemeanor, whereas the offense charged, gross negligence vehicular manslaughter, constitutes a felony.
But more importantly, the prosecutor’s comment that “they would dance out of these doors” if the jury convicted defendant of the lesser offense is not the same as the prosecutor’s statement in Sorenson that the defendant could be set loose. We agree with the Attorney General that a more reasonable construction of the prosecutor’s remark was that “they” referred to both defendant and defense counsel, who would have celebrated a conviction of the lesser offense given that defendant had admitted that offense, and the two of them would gleefully leave the courtroom if they achieved such a success. Given the overwhelming evidence that defendant’s aggressive and erratic driving caused the collision and constituted gross negligence, the prosecutor’s argument that defendant and his lawyer would “dance out of” the courtroom if handed a victory was a reasonable argument to the jury and was devoid of any of the dangerous argument we condemned in Sorenson.
Thus, we do not believe that the prosecutor’s rebuttal risked jury nullification. Obviously, a defendant who admitted his negligence caused death would be overjoyed with a verdict exonerating him of gross negligence. The prosecutor’s mere characterization of the lesser charge as a misdemeanor did not raise the potential for the jury to improperly consider punishment; it stated the simple fact that in this case the lesser charge was a misdemeanor. We will not presume the jury violated the express instructions that it “must reach [its] verdict without any consideration of punishment” (CALCRIM No. 200), that it was not to let “bias, sympathy, prejudice, or public opinion influence [its] decision” (CALCRIM No. 200), that it must base its verdict on only the evidence presented at trial (CALCRIM No. 222), and that nothing said by the attorneys, including closing argument, is evidence (CALCRIM No. 222).
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON , Acting P.J., MORRISON , J.