Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Super.Ct.No. RIF96431. Christian F. Thierbach, Judge. Affirmed with directions.
Robert E. Boyce and Laura G. Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant Clifford Ray Garrett.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant James Lee Abbott, Jr.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Scott C. Taylor and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury convicted James L. Abbott, Jr. (Abbott) and Clifford R. Garrett (Garrett) of attempted murder (Pen. Code, §§ 664 & 187), burglary (§ 459), torture (§ 206), mayhem (§ 205) and assault with a deadly weapon (§ 245, subd. (a)(1)). As to Abbott, the jury further found that he inflicted serious bodily injury (§ 12022.7, subd. (a)) and used a deadly weapon (§ 12022, subd. (b)(1)) during the attempted murder and aggravated assault, and he used a deadly weapon during the torture and mayhem. In bifurcated proceedings, Abbott admitted having suffered two prior convictions for which he served prison terms (§ 667.5, subd. (b)), two prior serious convictions (§ 667, subd. (a)) and three strikes (§ 667, subds. (c) & (e)). Garrett admitted having suffered four prior convictions for which he served prison terms. Abbott was sentenced to prison for 27-years-to-life plus 15 years and Garrett to life plus four years. The defendants appeal, making a number of arguments, all of which we reject. Therefore, we affirm Abbott’s judgment, while directing the trial court to make an addition to his abstract of judgment. We also affirm Garrett’s judgment, except that we remand the matter so he can be sentenced for his burglary conviction, which the trial court neglected to do.
All further statutory references are to the Penal Code unless otherwise indicated.
Facts
The victim’s drug dealer (hereinafter, “the dealer”) testified that a couple of days before the crimes, the victim called her wanting to purchase some methamphetamine from her. She agreed to meet him at a particular spot on the street. The victim showed up at the meeting place in a truck driven by his companion, which was owned by the owner of the home (hereinafter, “the homeowner”) where the victim and his companion were staying. The dealer handed the victim the methamphetamine she had brought with her, he handed it to his companion and the latter drove the truck off, leaving the dealer in the street without her money. The victim later called the dealer and told her he was going to give her the money that night, but he did not contact her again. On the night of March 26, the dealer and her neighbor (hereinafter, “the neighbor”) went to the home of the dealer’s friend (hereinafter, “the friend”), whom they had already told about the drug rip-off. The owner of the house where the victim and his companion were staying showed up and the dealer and the neighbor talked him into taking them back to his house so the dealer could confront the victim and his companion about the rip-off. The dealer wanted to take the neighbor’s husband with them as “back up” but he was unavailable. So, the dealer and the neighbor decided to ask Abbott to come along. The dealer knew that Abbott had a beef with the victim. The homeowner drove the women in his truck to Abbott’s place, where the homeowner waited outside as the women talked to Abbott. The dealer told Abbott that at least the victim was involved in the drug rip-off and the homeowner wanted the victim and his companion out of his home. Abbott was not interested until the dealer mentioned the victim’s name. The women told Abbott they wanted him to go with them to get the money from the victim. The three followed the homeowner’s truck in Abbott’s truck to the dealer’s apartment complex where they met up with Abbott’s roommate, Garrett. Abbott talked to Garrett and then Garrett got into the homeowner’s truck, bound for the homeowner’s house. Abbott’s truck, which contained Abbott, the dealer and the neighbor, accompanied them. The homeowner parked in his driveway and Abbott parked his noisy truck a few houses up the street. The homeowner, Abbott, Garrett, the dealer and the neighbor entered the house through the back door. The neighbor went to and stood by the front door. The homeowner said “they[,]” presumably meaning the victim and his companion, were both in the bedrooms and he went into the dining area of the kitchen. Abbott and Garrett approached the first bedroom door in the hallway, one of them kicked it open and both entered. After some commotion took place in the room, Garrett said, “That’s not him.” They then entered the next bedroom, where the victim was. The dealer saw Abbott hit the victim on the back of the head with a bar. She went to the front door, joining the neighbor, and both went out the door and down the street. When they got to the corner, Abbott came by in his truck and picked them up. Once back at the dealer’s apartment complex, Abbott threw the bar into the trash can. The dealer was charged and faced a sentence of 25 years to life for her involvement in these crimes. She pled guilty to assault with a deadly weapon and burglary. As part of her plea bargain, she received a sentence of six years and agreed to testify against Abbott and Garrett.
In his statement of facts, Abbott asserts that it was actually the homeowner’s mother who owned the home. In support, he cites a portion of an exhibit which was not admitted into evidence. As far as the jury was concerned, the home belonged to the person we have identified as “the homeowner” because everyone who testified at trial referred to the house as his.
She denied they intended to beat up the victim or his companion.
The victim testified that he had previously met Abbott at a drug rehabilitation facility where he and Abbott were roommates. The victim had reported malfeasance by Abbott to the director of the facility and after Abbott assaulted the victim in retaliation, Abbott was reported to his parole officer and removed from the facility. The victim continued to be in fear of Abbott retaliating against him.
The dealer denied that it was her idea to go to her apartment complex. She testified that she did not remember how Garrett knew they were there, whether a horn was honked to get him to come outside or whether anyone went to the apartment he was in to get him. The dealer had ingested methamphetamine shortly before going to Abbott’s apartment.
The friend testified that the dealer had complained to the homeowner of being ripped off by the victim and his companion in a drug deal and that the neighbor had joined in, adding that the two men had also ripped her off. When the homeowner came to the friends’ house, both women screamed at him and he appeared to be scared. They threatened to “fuck up” the homeowner if he did not help them rectify the situation or take them to the victim and his companion. The neighbor volunteered her husband to help, then said they would go get Abbott. The dealer said the neighbor and Abbott would help her.
A letter was introduced into evidence that Garrett had written to the neighbor while he was in jail following his arrest for these crimes. In it, he professed his love for her. He encouraged her to fight and for them to stay together and “beat the case.” He expressed concern about the dealer, whom he said had a loose mouth. He encouraged the neighbor to talk to the dealer so the latter “sees the whole picture.” Although Garrett claimed they were “all” innocent, he said that none of this would have happened if they hadn’t allowed it to and he and the neighbor had made bad decisions. Another letter he wrote to her three weeks later repeated that they were innocent.
Other facts will be disclosed as they are pertinent to the issues presented.
Issues and Discussion
1. Discovery
Abbott asked this court to review a transcript of a sealed in-camera pretrial hearing at which the trial court concluded that certain discovery should not be provided to him. After reviewing the transcript, we conclude that the trial court did not abuse its discretion in finding that good cause existed for it to withhold discovery from Abbott. We also conclude that the importance of withholding the information outweighed whatever constitutional rights to the effective assistance of counsel and a fair trial Abbott had that were impacted by the withholding of the information. (§ 1054.7.)
2. Comments About Reasonable Doubt During Voir Dire
During voir dire, the prosecutor asked the potential jurors, “Who thinks I have to have a perfect case, perfect evidence to get beyond a reasonable doubt? . . . [¶] . . . [¶] . . . Is anybody here going to feel, [‘Y]ou know what, if it’s not perfect [and], I don’t have every answer to every question I have in my mind, then I can’t do it, I can’t find guilty[’]?” A potential juror, who ultimately did not serve on the jury, replied, “I do. [¶] . . . [¶] Not perfect. It would have to be 98 percent perfect. [¶] . . . [¶] The charges these guys are facing I think are pretty serious and you’re talking serious penalties.” The trial court interrupted, pointing out that it had instructed the potential jurors that they could not consider penalty. It asked this potential juror if he could follow that instruction. The potential juror replied that maybe he should not serve, but he added that he had been given that instruction when he had served as a juror a previous time and was able to follow it. The prosecutor asked the potential jurors, “[This potential juror] said 98 percent. Who here thinks that beyond a reasonable doubt is a percentage?” Another potential juror, who did ultimately serve, responded that it was not a percentage, but “[i]t’s how you prove your burden of proof.” The prosecutor responded, “Right. It’s kind of this amorphous standard. I am not going to be able to put a line I can reach to the ceiling, or . . . to the top of my head . . . . It’s never going to be measured that way . . . . It’s something that you get to . . . after I prove the case to that point, but you understand that you’re not going to have a magic number. . . . [¶] And if I tell you it’s not proper to put to it a number in your own mind and then somehow try and look at everybody you’ve seen in the case and match it up and get a certain number, you understand you can’t do that either?” The prosecutor asked the potential jurors if any of them were troubled by that and none said that they were.
At the conclusion of the prosecutor’s portion of voir dire, the trial court said, “ . . . [T]here’s a little bit of concern over the attachment of a percentage number of the concept of reasonable doubt, and I heard a hypothetical asked of [potential] jurors in the past, and it . . . may shed some light on this concept.” The trial court then directed the following remarks to one of the potential jurors, who ultimately served on the jury,
“THE COURT: Let’s assume I told you I was the richest man in the world. I had more money than Bill Gates, the Sultan of Brunei, and the entire Walton family combined. Possible?
“[THE JUROR]: Is it possible that you are?
“THE COURT: Right, and I just—I’m so devoted to public service that, you know, I don’t feel the need to sit at home documenting my money, I like to come to work here and serve in any capacity possible?
“[THE JUROR]: I think that’s possible for somebody.
“THE COURT: But is it reasonable?
“[THE JUROR]: No, probably not.
“THE COURT: See. Does that kind of help you out a little bit in this concept of reasonable versus possible. That is the instruction I read to you yesterday, when you’re dealing with human affairs, all things are possible, but the doubt that you have in order to return a verdict of not guilty, that has to be reasonable. You may have doubts. Anything is possible dealing with human affairs, but unless that doubt is reasonable, your task is clear. Everybody understand that? It gets back to this concept of common sense. Everyone agree? Okay.”
The defendants contend that the trial court trivialized the reasonable doubt standard and lowered the prosecution’s burden of proof by “equating proof beyond a reasonable doubt to the concept of ‘common sense,’ and reasonableness with probability and everyday speculation.” We disagree. The trial court’s statement was a correct paraphrasing of a portion of the reasonable doubt instruction, which it had already read to the potential jurors, i.e., “Reasonable doubt . . . [¶] . . . is not a mere possible doubt because everything relating to human affairs is open to some possible or imaginary doubt.” It was also a restatement of the following explanation of the concept of reasonable doubt the trial court had given the potential jurors soon after it quoted the reasonable doubt instruction, “. . . [A]s the instruction tells us, there’s no such thing when you’re talking about human affairs or human conduct that rises to an absolute certainty. The law recognizes that there isn’t a standard of perfection when we’re talking about human conduct or human behavior. But the law does require that the prosecution . . . reach the highest standard of proof. And as I told you, that’s proof beyond a reasonable doubt, not a mere possible doubt. You may have some doubt, but unless that doubt is reasonable, your verdict is guilty. [¶] If the doubt is unreasonable, then your verdict is not guilty.” Although Garrett here does not take issue with this explanation, Abbott does. However, he does not say what is wrong with this explanation.
Obviously, the trial court misspoke as to this statement. However, the fact that it used a double negative, and it would have required any potential juror to see the statement in writing in order to understand its meaning (which the potential jurors did not) convinces us that it was not prejudicial to the defendants.
He also appears to object to the following statements by the trial court, without providing further explanation, “. . . [W]hat does [the definition of reasonable doubt in the instruction] mean? Means two things: First and foremost, as they sit here right now, Mr. Abbott and Mr. Garrett are, in the eyes of the law, presumed to be innocent. This is what we call a rebuttable presumption. The way that is rebutted is, once again, through the presentation of evidence, through the testimony of witnesses. And this gets back to the point I have been making a couple times thus far; the duty of [the prosecutor]. It is his job to convince you through evidence that the defendants are guilty. [¶] Now, that’s the first part of the instruction. They were presumed to be innocent until the contrary is proved. [¶] Now, how do you get to that point that the contrary is proved? In order to prove both defendants are guilty, and then and only then can you return a verdict of guilt, you have to be convinced beyond a reasonable doubt.”
By its statement, “It gets back to this concept of common sense[,]” the trial court was not, as Garrett here asserts, equating proof beyond a reasonable doubt with the concept of common sense. The court was merely explaining that common sense dictates that possible doubts cannot be the basis for a not guilty verdict, but a reasonable doubt can. As to Garrett’s assertion that by this statement, the trial court equated reasonableness with probability and everyday speculation, he severely misinterprets the trial court’s words.
Finally, by saying, “but the doubt you have in order to return a verdict of not guilty, that has to be reasonable” did not, as Garrett here contends, “place[] the burden on the defendant to raise a reasonable doubt before the juror could acquit[.]” The trial court was merely distinguishing possible doubts from reasonable doubts.
People v. Johnson (2004) 119 Cal.App.4th 976 (Johnson II) and People v. Johnson (2004) 115 Cal.App.4th 1169 (Johnson I), which Garrett cites in support of his position, are distinguishable. In the former case, the trial court repeatedly “equated proof beyond a reasonable doubt to everyday decision making in a juror’s life” and invited the jurors to, in deciding between guilty and not guilty, “‘make the kind of decisions you make everyday in your life.’” (Johnson II at pp. 980-983.) The appellate court pointed out that this had been condemned by the California Supreme Court. (Id. at p. 985.) Similarly, in Johnson I, the appellate court condemned equating reasonable doubt with the doubt one deals with in deciding to take a vacation or get on an airplane. (Johnson I at p. 1172.) This is not what occurred here.
Along the same vein is People v. Nguyen (1995) 40 Cal.App.4th 28, which Garrett also cites.
People v. Garcia (1975) 54 Cal.App.3d 61 and People v. Paulsell (1896) 115 Cal. 6, which Garrett also cites, are also distinguishable. In Garcia, the trial court said that reasonable doubt was the doubt “‘that presents itself in the minds of reasonable people who are weighing the evidence in the scales, one side against the other, in a logical manner in an effort to determine wherein lies the truth.’” (People v. Garcia, supra, 54 Cal.App.3d at p. 68.) The appellate court found the reference to weighing “strikingly comparable” to the preponderance standard and the tipping of the scales “wholly foreign to the concept of proof beyond a reasonable doubt.” (Id. at p. 69.) In Paulsell, the California Supreme Court warned against telling the jury that reasonable doubt “must be based upon” common sense, because that term “is about as uncertain as any phrase in the language.” (People v. Paulsell, supra, 115 Cal. at p. 12.)
3. Admission of Evidence
a. Plea Form of the Neighbor
The People sought admission of the neighbor’s change of plea form. In it, the neighbor stated that she was pleading guilty to first degree burglary, for entering the homeowner’s house with the intent to commit theft, and mayhem. All other counts and allegations, which were not listed on the form, were to be dismissed and the neighbor was to serve a term of five years four months in state prison.
The defendants objected to admission of the plea form on the basis that it was irrelevant. Additionally, they stated that it was their understanding that it was being introduced to corroborate the testimony of the dealer and the friend. However, they asserted, the neighbor was an accomplice, as was the dealer, and the neighbor could not corroborate the dealer. They stated they did not see how the plea form corroborated the testimony of the friend.
It appears that the People responded that the fact that the neighbor pled guilty contradicted Garrett’s self-serving statements in his letters to the neighbor that they were all innocent. The trial court concluded the plea form was relevant and admitted it.
It is difficult to discern exactly what the prosecutor said, either due to the imprecise manner in which he spoke or to poor reporting by the court stenographer. The portion of the transcript containing the prosecutor’s response is as follows, “Under 452, subdivision (b) of the Evidence Code, I believe it’s admissible to prove [the neighbor] pled guilty to the act, to which she pleaded mayhem and 459 of this indicated, not so much under 1111 of corroboration, which I do need in this case for [the dealer’s] testimony to corroborate [the dealer] and [the friend]. And as Court’s going to hear, as we discuss the letters, or I do in my closing argument, it impeaches, to quite a large extent, some self-serving statement to Mr. Garrett in those letters as to what did or did not happen as to March 27, 2001, by virtue of her plea.” The People interpret these remarks as meaning that admission was being sought not to corroborate the dealer and the friend, but to impeach Garrett’s assertion in his letter to the neighbor that everyone involved in the crimes was innocent. This is a reasonable interpretation of the prosecutor’s remarks. Certainly, the prosecutor never argued that the plea form corroborated the testimony of the dealer or the friend. Despite this, Garrett, in his letter brief of 10/26/07 asserts that the prosecutor “argued the plea agreement . . . was necessary to corroborate the testimony of [the dealer] and [the friend]” citing to that portion of the record quoted above.
The defendants here contend that the plea form should not have been admitted. They state that it was irrelevant, hearsay and inadmissible under Evidence Code section 352, citing People v. Cummings (1993) 4 Cal.4th 1233, 1294-1295 (Cummings); People v. Wheeler (1992) 4 Cal.4th 284, 298-300 (Wheeler); and People v. James (1969) 274 Cal.App.2d 608, 612 (James). However, these opinions have no application to this case. Moreover, as the People correctly point out, of the three grounds the defendants now assert for inadmissibility, they objected below only on the basis that the evidence was irrelevant. Therefore, they waived the other two. (Evid. Code, § 353.)
Garrett makes this contention in his briefs. In his opening brief, Abbott states only, “Reversal is also required for the California law . . . hearsay errors.” We assume that this assertion is an attempt by Abbott to join in the argument made by Garrett in his opening brief.
The citation defendant provided incorrectly for this case is 74 Cal.App.2d 608.
In Cummings, the wife of the codefendant had attempted to help her husband and the defendant flee the state after the two had killed a police officer. The officer had been shot when he pulled over a car driven by the defendant’s wife, with defendant and the codefendant inside. The wife had testified that while the officer had her car pulled over, and was leaning inside it, he was shot once in the shoulder by either the defendant or the codefendant, then shot numerous times by the codefendant. The defendant and codefendant both then reenacted the shooting for the wife of the codefendant. The wife of the codefendant had been called to testify at trial, but had taken the Fifth Amendment. The evidence at issue was that she had been tried and convicted by a jury of being an accessory after the murder of the officer. The People’s theory of admissibility was that the evidence tended to show that the testimony of the defendant’s wife “had a basis in fact.” (Cummings, supra, 4 Cal.4th at p. 1294.) The California Supreme Court observed that if it did, it was hearsay and lacked relevance for purposes of corroboration. The court added, “The conviction reflected only the view of a judge or jury that evidence presented in a different case established that [the codefendant’s wife] had assisted the defendants or either of them after the murder.” It did not come within any exception to the hearsay rule applicable to judgments. (Id. at pp. 1294-1295.) “[T]he official records exception to the hearsay rule . . . permits use of the record only to establish that a judgment was entered, not to establish that guilt has been determined.” (Id. at p. 1295, fn. 36.) “Furthermore, . . . the trial court did not rule on the objection that the evidence was more prejudicial than probative. It clearly was. Although [her] assistance to either her husband or [the defendant] could have been the basis for the conviction, it is inconceivable that the jury would not understand the evidence to reflect guilt of aiding her husband who, by necessary implication, had committed a murder.” (Id. at p. 1295.) Here, in contrast to Cummings, the neighbor’s plea form was not introduced to prove that she committed burglary and mayhem. It was introduced to show that she pled guilty to those offenses in order to refute the assertion in Garrett’s letters that he, the neighbor, and everyone else involved in the crimes was innocent. Admission of the plea form was the equivalent of having someone who had witnessed the neighbor entering her plea come into court and testify that the neighbor had pled guilty to burglary and mayhem. It was a record of a fact, i.e., that she pled guilty — it was not an out of court statement introduced to prove the truth of the matter asserted therein. Contrary to the defendants’ assertion, it certainly was not a statement by the neighbor that she, in fact, committed burglary and mayhem. Moreover, the fact that the neighbor pled guilty, unlike the evidence in Cummings, did not necessarily directly implicate either defendant. Finally, although the Cummings court did not state, it is difficult to see how the conviction of the codefendant’s wife corroborated the testimony of the defendant’s wife. Here, in contrast, the fact that the neighbor pled guilty to burglary and mayhem, as evidenced by the plea form, clearly contradicted the assertion Garrett made in his letter to the neighbor that he, she and everyone else involved in the crimes was innocent.
Therefore, defense counsels’ failure to object to it at trial on the basis that it was hearsay did not, as the defendants here assert, constitute ineffective assistance of counsel.
The defendants’ reliance on People v. Trujillo (2006) 40 Cal.4th 165, 176, for the proposition that a guilty plea constitutes a judicial admission of all the elements of the offense is misplaced. In Trujillo, the issue was whether defendant’s guilty plea for a previous infliction of corporal injury could be considered, for purposes of determining whether it was a strike, to have involved use of a deadly weapon based solely on defendant’s admission to his probation officer that it did. (Id. at p. 175.) The California Supreme Court held that proof of the nature of a prior was limited to that necessarily established by the guilty plea and nothing else. (Id. at p. 176.) In so holding, the court quoted the well-established rule that a guilty plea constitutes an admission of every element of the offense, but nothing more. (Ibid.) The context of the issue here is entirely different. While trial courts and attorneys are well acquainted with the legal rule, jurors are not. All these jurors were told by virtue of the plea form was that the neighbor pled guilty to burglary and mayhem. They were not told that the neighbor actually admitted that she had committed burglary and mayhem. The same applies to the defendants’ reliance on Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122, 135, fn.11)
For this reason, we reject the defendants’ contention that their trial attorneys’ failure to object to the plea form on the basis of Evidence Code section 352 constituted incompetency.
In Wheeler, the California Supreme Court held, inter alia, that a misdemeanor conviction itself is inadmissible hearsay when offered as evidence that a testifying witness committed misconduct bearing on credibility and therefore should not be believed. (Wheeler, supra, 4 Cal.4th at pp. 297, 300.) The inapplicability of this holding to this case is so apparent that further comment is unnecessary.
Finally, in James, the appellate court concluded that certified copies of a woman’s conviction in 1963 and guilty plea in 1966 for disorderly conduct for engaging in prostitution and soliciting an act of prostitution, respectively, were inadmissible to prove that she was a prostitute for purposes of establishing that as an element of the offense of pimping charged against the defendant. The appellate court pointed out that the fact that the woman engaged in prostitution/solicitation of prostitution in 1963 and 1966 did not prove she did so when the charged offense occurred in 1967. (James, supra, 274 Cal.App.2d at p. 611.) Moreover, the copies had been introduced to prove the truth of the matter asserted therein, i.e., that the woman was a prostitute, and no exception to the hearsay rules applied to them. (Id at p. 612.) Here, in contrast, the plea form was not introduced to prove that the neighbor, in fact, committed burglary and mayhem.
The defendants also assert that admission of the plea form violated their right to confrontation and cross-examination under Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] (Crawford). However, their failure to assert this basis below waived it. (Evid. Code, § 353.) As a fall-back position, Abbott argues that the failure of his trial counsel to object on this basis constitutes incompetency, requiring reversal. We disagree.
As stated before, the plea form was evidence that the neighbor had pled guilty to burglary and mayhem. Also, as stated before, it was no different than calling to the stand a witness who had seen the neighbor enter her plea testify in court that he or she had seen the neighbor enter such a plea. Neither defendant asserts that the neighbor did not, in fact, enter such a plea. Therefore, there was no basis for cross-examination. Moreover, as we have already noted, the plea form was not hearsay. Crawford applies only to hearsay statements. (Crawford, supra, 541 U.S. 36 at p. 59, fn. 9 [“[t]he [Confrontation] Clause . . . does not does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted”]; People v. Cage (2007) 40 Cal.4th 965, 969; People v. Ledesma (2006) 39 Cal.4th 641, 707 fn. 18; People v. Cooper (2007) 148 Cal.App.4th 731, 742-745 [“ . . . [N]on hearsay statements are not testimonial and therefore not subject to the confrontation clause”]; People v. Mitchell (2005) 131 Cal.App.4th 1210, 1224.)
b. Videotape of Crime Scene
The jury was shown a videotape of the homeowner’s house during the testimony of an investigator from the prosecutor’s office. The tape had been made almost a year after the crimes. The jury was not permitted to hear the audio portion of the tape. The tape began with shots of the front exterior of the home and the street on which it is situated. After a few minutes, the homeowner is seen along with the investigator walking up the driveway, down a side walkway, through a gate and onto the back porch, through the back door, into the kitchen and standing in the doorway between the kitchen and the living room. At times, the homeowner is seen talking to someone and gesturing with his hands, but no discernable words can be gathered from either. In fact, the investigator testified that he was giving the homeowner instructions of where to take him. The homeowner is not seen while the camera pans the living room and follows the investigator down the hall on the other side of the kitchen and into two bedrooms. The homeowner is seen again, talking and gesturing with his hands, from his earlier position in the doorway between the kitchen and the living room. As before, no discernable words can be gathered from this activity. The camera again pans the living room, showing the front door and views out the front door to the front porch and the lawn. The homeowner is again seen talking from his same position, then is seen for one or two seconds going into the living room. He is seen in front of the refrigerator in the kitchen, talking, but, as before, nothing can be discerned of what he is saying. The camera again pans the living room and the view out the front door to the driveway. The front screen door opens and the camera operator goes outside to capture views of the street in front of the house and down the street from the front porch. Views of the front door and front window are then seen.
The defendants assert “nothing prevented the jury from trying to ‘lip read’ [what the homeowner was saying].” We have viewed the tape. At some points, the homeowner has his back to the camera. Even when he is facing the camera, no one, short of a trained lip reader, could possible discern what he was saying. The defendants’ assertion that the homeowner was “showing how entry was made and his location hiding behind the refrigerator” is completely unsupported by the videotape. The owner walked through his back door. There was no particular significance to this act. We did not discern the homeowner showing the investigator “his location hiding behind the refrigerator.” The defendants’ assertion that the videotape “depicted and told the jury ‘this is what I did and this is where I was’ during the assault” is completely unsupported.
See footnote 15, ante, pages 19-20.
See footnote 15, ante, pages 19-20.
We disagree with the defendants’ assertion in his reply brief that the silent videotape “depicts [the homeowner] showing and telling the district attorney investigator how entry was made into his house . . . before the assault on [the victim]” and that it “demonstrates . . . his location behind the refrigerator after everyone entered his house.” Additionally, just as an aside, despite the defendants’ numerous assertions to the contrary, no one testified at trial that the homeowner was behind the refrigerator after everyone else entered his house. In fact, the dealer testified that he was “right next to the refrigerator” when she came out of the hall. (In his statement of facts in his opening brief, appellate counsel for Abbott cites to portions of Exhibit 46a to support his statements about the homeowner’s activities during the crimes, but that exhibit was never admitted into evidence.)
Neither defendant objected to the admission of this videotape at trial. However, here, they claim that the tape was testimonial and its admission violated their right to confrontation and cross-examination. They waived this objection by failing to make it below. (Evid. Code, § 353.) Moreover, it lacks merit. The tape does not constitute anything of evidentiary value with regard to the homeowner. The portion of it in which he appears conveys no meaning whatsoever, therefore, it does not constitute testimony. (See People v. Jurado (2006) 38 Cal.4th 72, 129.)
Having so concluded, we necessarily reject Abbott’s argument that the prosecutor committed misconduct by getting what he knew were the homeowner’s “statements”, which had been rendered inadmissible by Crawford, nevertheless admitted into evidence. As to Abbott’s assertion that the prosecutor fed into the witness intimidation theme of the People’s case against him by showing the videotape and “not presenting [the homeowner] as a witness”, nothing stopped Abbott from demonstrating that the homeowner was dead at the time of trial and that was the reason, rather than witness intimidation, that the latter was not testifying.
c. Garrett’s Admissions to His Mother
Garrett’s mother testified that two weeks before trial, Garrett told her that he was at the scene of the crimes, that he helped open the door, but he did not touch the victim and he wanted to leave. The trial court struck the testimony because Garrett’s attorney would have been able to cross-examine Garrett’s mother about other things that he said during his conversation with his mother, some of which implicated Abbott, but Abbott’s attorney would not be able to cross-examine Garrett about those statements because Garrett would not be testifying. The trial court informed the jurors that it had stricken Garrett’s mother’s testimony and they were to disregard it.
Abbott contends that admission of the evidence requires reversal. We disagree. The jury is presumed to have followed the clear instructions the trial court gave it. (People v. Jablonski (2006) 37 Cal.4th 774, 834.) Moreover, as the People correctly note, the statement implicated only Garrett.
Although Garrett joins in Abbott’s arguments concerning the neighbor’s plea form and the videotape he does not join in Abbott’s argument about the admission of Garrett’s mother’s testimony.
Abbott incorrectly reports twice that Garrett’s trial counsel conceded that Garrett entered the home with the intent to commit burglary. In fact, Garrett’s attorney argued that Garrett was not guilty of any of the charged offenses.
d. Phone Conversation Between the Friend and Garrett
During his direct testimony, the friend testified that after Garrett had been arrested, the latter called him and asked him if the homeowner had said anything or talked to the police about the crimes. The friend told Garrett that the homeowner had not. Garrett then said that if people talked, something would happen. The prosecutor then asked the friend, “What do you remember him specifically saying . . . ?” His question was interrupted by a hearsay objection from Abbott’s attorney, which the trial court overruled. The friend then testified that Garrett said that people who talked would be taken care of and they’d regret it. Abbott now asserts that his hearsay objection should have been sustained, however, the witness had already testified to the substance of what he repeated after the objection was overruled. Moreover, as Abbott, himself, points out, the jury was free to use other attempts at witness intimidation by Garrett against him. However, Abbott’s attempts at witness intimidation were even more pronounced than Garrett’s, therefore, we cannot conclude that Abbott was prejudiced by the admission of this evidence.
Abbott complains that although these letters were admitted under the theory that Garrett and Abbott were conspiring together to intimidate witnesses, the jury was not given an instruction on conspiracy. However, the existence of a conspiracy to intimidate was a foundational matter for the trial court to determine, not the jury.
4. Jury Instructions
a. Accomplice Instructions
1. As to the Neighbor
The defendants assert that the jury should have been instructed inter alia, that the neighbor was an accomplice, as a matter of law, and it could not find them “guilty based upon [her testimony] . . . unless that testimony [was] corroborated by other evidence which tends to connect the . . . defendant[s] with the commission of the offense[s]. [¶] Testimony [of an accomplice] . . . includes any out-of-court statement purportedly made by [an accomplice] received for the purpose of proving that what the [accomplice] . . . stated out-of-court was true.” (CALJIC Nos. 3.11 & 3.16.) They also argue that the jury should have been instructed that it could determine that the neighbor was an accomplice, and apply the accomplice instructions to her “testimony.” However, there was no “testimony” by her.
This includes all the other instructions concerning the testimony of an accomplice.
As stated before, the neighbor’s plea form was not an out-of-court statement received for the purpose of proving the truth of the matter asserted therein. It was not, as the defendants assert, a confession or admission to burglary and mayhem. Rather, it was a record of the fact that the neighbor pled guilty to those offenses. It did not constitute testimony by her. Therefore, there was no need to give the accomplice instruction concerning the neighbor’s plea form.
2. As to the Homeowner
The defendants assert that the jury should have been instructed to determine if the homeowner was an accomplice, and, if it concluded he was, to apply the accomplice instructions to him. However, as we have already concluded, the homeowner’s brief appearances on the silent video tour of his home did not constitute testimony. Therefore, there was no need for the trial court to apply the accomplice instructions to him.
3. Failure to Define Conspiracy
The jury was instructed that an accomplice was a person who was subject to prosecution for the same offenses charged against the defendant by reason of that person aiding and abetting or being a member of a criminal conspiracy. The jury was also told that the dealer was an accomplice as a matter of law. The term “criminal conspiracy” was never defined for the jury and the defendants contend that this requires reversal of their convictions because the absence of the definition may have prohibited the jury from considering either the neighbor or the homeowner as an accomplice. Our conclusion that the testimony of neither of these people was offered at trial obviates the need for us to discuss this issue further.
Although he purports to join in Abbott’s argument, Garrett, in fact, states as follows concerning this contention, “[Garrett] was prosecuted [as an] aider and abettor to . . . Abbott. The error in failing to define conspiracy . . . could lead the jury to erroneously conclude [Garrett] was a co-conspirator with . . . Abbott.” Based on the instructions given and the argument of counsel, there was no chance that this jury could have made up its own definition of conspiracy and convicted Garrett of these offenses based on its conclusion that he conspired with Abbott.
b. Instructions on Guilty Pleas
The defendants contend that the trial court had a sua sponte duty to instruct the jury that guilty pleas based on plea bargains could not be used to establish the existence of any charged crimes. However, the limited use to which the neighbor’s plea form was put obviated the need for such an instruction as to her. The dealer testified that she was originally charged with the same offenses of which the defendants were accused at trial, she faced 25 years to life in prison, and she received, as part of her bargain, a six-year term in prison for pleading guilty to assault with a deadly weapon and burglary. However, she also testified that she went to the homeowner’s home with the intent to take money from the victim by force or fear and, therefore, in fact, committed a burglary and she set the wheels in motion for the assault of the victim, thereby, committing assault with a deadly weapon (as an aider and abettor). Therefore, there was no need to instruct the jury not to use her plea bargain to establish the existence of any crimes. The jury had her admissions/confession on the stand for that.
See second paragraph of footnote 9, ante, page 14.
The defendants also contend that the trial court had a sua sponte duty to instruct the jury that it could not use “a guilty plea confession by a former codefendant . . . against the defendant, especially if the codefendant never takes the stand and testifies” and that a person “may plead guilty to a crime he[/she] did not commit in order to avoid greater punishment.” However, no confession by the neighbor was ever introduced into evidence. Her plea form and its use has already been discussed in this opinion. That use did not merit such an instruction. Therefore, defendants’ fall back position that their trial counsel was ineffective for failing to request such instructions also fails.
c. Burglary Instructions
The defendants claim the trial court had a sua sponte duty to instruct the jury that the consent of the homeowner for them to enter his home was a defense to the burglary charges brought against them. Indeed, “a person who enters a structure with the intent to commit a felony is guilty of burglary ‘except when he or she . . . is invited in by the occupant who knows of and endorses the felonious intent.’” (People v. Hinton (2006) 37 Cal.4th 839, 886 (Hinton).)
Hinton merely cited, without comment, the holding of People v. Salemme (1992) 2 Cal.App.4th 775, 781. Salemme’s holding is a purported synthesis of People v. Gauze (1975) 15 Cal.3d 709 (Gauze), People v. Pendleton (1979) 25 Cal.3d 371 (Pendleton) and People v. Superior Court (Granillo) (1988) 205 Cal.App.3d 1478. Gauze held that a defendant cannot be guilty of burglarizing his own apartment by entering with the intent to assault one of his housemates because he had an absolute right to enter the apartment “that could not be conditioned on the consent of [his] roommates.” (Gauze, supra, 15 Cal.3d 709 at p. 714.) The court noted, “In contrast to the usual burglary situation, no danger arises from the mere entry of a person into his own home, no matter what his intention is. He may cause a great deal of mischief once inside. But no emotional distress is suffered, no panic is engendered, and no violence necessarily erupts merely because he walks into the house.” (Id. at p. 715.) In Pendleton, the California Supreme Court rejected the defendant’s contention that entry without the consent of the owner or lawful possessor was a necessary element of burglary, noting that “‘ . . . the entry need not constitute a trespass’ to support a burglary conviction.” (Pendleton, supra, 25 Cal.3d 371 at p. 382.) The court commented that Gauze did not hold to the contrary—that, therein, “[w]e did not overrule existing authority upholding burglary convictions in which there was consensual entry. . . . [O]ne may be convicted of burglary even if he enters with consent, provided he does not have an unconditional possessory right to enter.” (Ibid.) Finally, in Granillo, an undercover police officer invited defendant into his apartment to sell him stolen goods there. (Granillo, supra, 205 Cal.App.3d at pp. 1480-1481.) In construing and applying the holdings in a California Supreme Court case that predated Gauze and a court of appeal decision, the Granillo court held that the apparent consent with which a burglar may enter is nullified by the burglar’s intent to commit a felony inside the premises. (Id. at p. 1484.) Citing one of its own decisions, the Granillo court went on to hold that “qualifying premise [to the rule that apparent consent to enter is nullified by the intent to commit a felony once inside] is that the occupant who gives consent to entry is either unaware of the visitor’s felonious intent . . . or, if aware of the felonious intent, the occupant does not endorse it.” (Ibid.) Concluding that the undercover officer was aware of and endorsed the defendant’s felonious intent, the Granillo court concluded that the defendant could not be guilty of burglary for entering the undercover officer’s apartment. (Id. at p. 1485.) The court noted that the defendant was “not an intruder, nor did any danger to personal safety arise from his mere entry.” (Id. at p. 1485.) Here, in contrast to the facts in Gauze, Abbott and Garrett did not have an absolute right to enter the homeowner’s home, particularly against the wishes of the victim, who was afraid of Abbott and had been trying to avoid him since their encounter at the rehabilitation facility. Unlike what the Gauze court noted, here, there was, indeed, a danger of panic and violence erupting merely because Abbott and Garrett entered the house. Likewise, in contrast to the defendant in Granillo, Abbott and Garrett were intruders, as far as the victim was concerned, and a danger to his personal safety was occasioned by their entry into the house. In other words, while we have addressed the issue presuming that the law as the defendants present it is correct, we are not persuaded that it applies to the facts of this case.
There was no substantial evidence presented at trial that the homeowner was aware of the defendants’ felonious purpose and endorsed it. Additionally, the homeowner’s consent that the defendants enter his home would have had to have been freely given, and not the product of pressure or intimidation by the dealer, the neighbor, and/or the defendants or the result of intoxication. There was no substantial evidence presented at trial that it was not. Therefore, there was no substantial evidence triggering the trial court’s sua sponte duty to give an instruction on consent.
The defendants note that the dealer testified that she was able to persuade the homeowner to take them to the victim and his companion because the victim had taken the homeowner’s scanner, which the dealer had bought from the victim for drugs, and the homeowner no longer wanted the victim and his companion in his home. She also testified that when she went to Abbott’s to persuade him to go with her and the neighbor to the homeowner’s house to confront the victim and his companion, she told Abbott that the homeowner wanted the victim and his companion out of his house. However, she denied that they went to the house that night to evict the victim or his companion.
The dealer and the friend testified that the homeowner ingested methamphetamine shortly before the crimes, which could also have affected his ability to freely consent. While the dealer asserted that she and the neighbor had not threatened the homeowner, she said she was angry when she confronted him about what she believed was his involvement in the drug rip off and she conceded that he could be intimidated. The friend, on the other hand, testified that the dealer was “agitated, irritated [and] pissed off” when she confronted the homeowner about his possible involvement in the drug rip off, that she and the neighbor yelled at him, they threatened to have him “beat . . . up . . . [or] fuck[ed] up” by Abbott and the homeowner appeared fearful. The friend further testified that the homeowner said, “I’ll do what I got to do. I don’t want to get fucked up.”
Considering the fact that the homeowner was dead at the time of trial, it would have been difficult for the defendants to prove either matter, unless the homeowner made statements about the matter to any of the witnesses who testified at trial or to a third party. We assume that the failure of either defendant to produce such evidence at trial means it was non-existent.
5. Insufficiency of the Evidence
a. Of Garrett Aiding and Abetting Torture, Mayhem, Assault with a Deadly Weapon, and Attempted Murder
Garrett contends that there was no evidence that he knew of Abbott’s criminal purpose or intended to commit, encourage or facilitate Abbott’s commission of aggravated assault, aggravated mayhem or torture. As stated before, there was evidence that Abbott spoke to Garrett, his roommate, at the dealer’s apartment complex before Garrett joined the group going to the homeowner’s house. Without further discussion either en route or once in the house, Garrett and Abbott both “stormed” the door to the first bedroom and rushed inside. At that point, Abbott had a large cylindrical item in his right hand. Garrett was the one who informed Abbott that the person inside was not the intended victim and they left and entered the second bedroom when the victim unlocked the door to it. The victim, himself, testified that Garrett was in the bedroom when Abbott was assaulting him. There was also evidence that it was Garrett who told Abbott, “That’s enough” and told him that they should leave. They fled the scene together. Garrett’s staying in daily touch with Abbott after their arrests, and his attempts to have the victim and others intimidated or worse and to blame everything on the dealer because she had spoken to the police, despite the fact that he acknowledged that “we are all responsible for anything that happened” demonstrated that, as the prosecutor told the jury, he was, “‘In for a penny, in for a pound’” with Abbott. The fact that Garrett expressed no surprise when Abbott began beating the victim in the head with a metal bar demonstrated that he shared Abbott’s intent to commit mayhem, torture and assault with a deadly weapon. The attempted murder was a natural and probable consequence of the other offenses.
We recognize that the woman inside this room testified that only Abbott was at the doorway of the room and did not enter. However, she also testified that, upon hearing a woman’s voice in the hall, Abbott said, “Just a minute. Let me talk to my homeboy for a minute” suggesting that he was acting with another.
She described the item Abbott had as a “tubular Maglite size” but if it was a flashlight, she did not see the light portion. When asked if she was certain it was a Maglite, she said, “No, no. I was just trying to communicate kind of tubular diameter, length, probably three cell.” The fact that a Maglite was found after the crimes at the dealer’s apartment does not, as Garrett asserts, prove that what Abbott had in his hand was a flashlight, the possession of which would not have necessarily caused Garrett to believe Abbott was about to beat the victim. Moreover, we doubt that a Maglite could have produced the sounds this witness testified she heard coming from the room that contained the victim. (“I heard what sounded like a baseball bat hitting the arm of a couch repeatedly.”) Certainly, it was incompatible with the dealer’s testimony that she saw Abbott hit the victim with a metal bar. The victim’s doctor never testified that the damage to his patient could have been done with a flashlight.
b. Of Garrett Committing Burglary
Garrett contends that for the jury to have relied on the discussion between him and Abbott at the dealer’s apartment complex before they traveled to the homeowner’s house as evidence that he was informed of Abbott’s intent in going to the house was purely speculative. We disagree. There is seldom direct evidence of a defendant’s intent. The jury was free to logically assume that during the discussion between Garrett and Abbott at the complex, Garrett was informed of the purpose for the trip to the homeowner’s house. Certainly, Garrett’s conduct after arriving at the house corroborated that assumption.
c. Of Abbott Committing Aggravated Mayhem and Torture
Abbott argues that the intent for aggravated mayhem and torture is inconsistent with the intent for attempted murder, therefore, insufficient evidence supports his convictions of the former. We disagree. The intent for attempted murder, i.e., the intent to kill, is not inconsistent with the intent for aggravated mayhem, which is the specific intent permanently to disable, disfigure or deprive the victim of a member of his body, and the intent for torture, which is the specific intent to cause cruel or extreme pain and suffering. Abbott could have the specific intents to permanently disable, disfigure or deprive the victim of a member of his body and to cause cruel and extreme pain or suffering for as long as the victim remained alive before his impending death, or for longer, if he failed to die, while also having the desire or knowledge to a substantial certainty that he would die, thus, the intent to kill. (See People v. Bemore (2000) 22 Cal.4th 809, 839; People v. Ferrell (1990) 218 Cal.App.3d 828, 833-834.)
Without further discussion, Abbott asserts that nothing more than speculation, surmise, conjecture and guesswork supports findings that he had all three of these intents. We disagree. Hitting a defenseless person many times with a metal bar, held in both hands, in the head, face, neck and torso with force so hard that it fractured his skull, exposing his brain, and severed a finger, supports finding all three intents. (See People v. Quintero (2006) 135 Cal.App.4th 1152, 1162 [intent to commit mayhem]; People v. Park (2003) 112 Cal.App.4th 61, 69 [intent to commit mayhem]; People v. Ferrell, supra, 218 Cal.App.3d at pp. 835-836 [intent to commit mayhem and kill].) Abbott asserts that the evidence demonstrates that he delivered blows calculated to kill the victim quickly, therefore, there was insufficient evidence of the intent necessary for torture. However, many blows were delivered to the victim, and not just to his head, where one would expect that a sufficiently forceful one might kill him quickly. He was struck on the face, neck, back, including the lower back, fingers, shoulders and arms—in other words, anywhere Abbott could get in a good whack with the metal bar.
The dealer testified that the first blow to the victim’s head was delivered by Abbott as he held the metal bar in both hands and came down on the victim’s head as though he was chopping wood.
Finally, Abbott asserts that an indiscriminate attack with a pipe, especially with an intent to kill, is not sufficient to support a conviction for mayhem citing People v. Sears (1965) 62 Cal.2d 737, 745 (Sears) and People v. Anderson (1965) 63 Cal.2d 351, 358-359 (Anderson). Both of those cases are distinguishable.
In Sears, the victim died of a knife wound that punctured her jugular vein. She also had lacerations to her face, including one to her lip and one to her nose, caused by the defendant striking her with a steel pipe, and a scalp wound, of undisclosed origin. (Sears, supra, 62 Cal.2d at pp. 741, 745.) The California Supreme Court concluded that injuries to the victim’s nose and lip did not support a finding that the defendant intended to commit mayhem. (Id. at p. 745.) In contrast to Sears, the injuries here were far more numerous and far more severe.
In Anderson, the intoxicated defendant inflicted 60 knife wounds on his victim, some post mortem and about 20 of which were superficial, according to the prosecution, in order to silence the victim after he had attempted to molest her and she either screamed or threatened to tell on him. (Anderson, supra, 63 Cal.2d at p. 357.) The California Supreme Court concluded that there was insufficient evidence that he intended to commit mayhem—rather, the record showed only “an indiscriminate attack.” (Id. at p. 359.) Here, in contrast, there was no evidence of an indiscriminate act as there was in Anderson. Abbott’s attack on the victim was not the spontaneous act of an intoxicated person but the result of a well-thought out plan by a person who “had a [pre-existing] beef with” the victim and in which Abbott persuaded Garrett to join him. Just before he began his attack, Abbott, who was a Skinhead, called the victim “a race trading cocksucker” no doubt references to what the victim had done to Abbott years before, and what he had done to the dealer days before. Abbott had previously struck the victim over the incident at the rehabilitation facility.
In responding to all of these matters on the merits, we necessarily reject the contention that trial counsel was incompetent for failing to object below.
The defendants cite to a number of instances of what they claim are prosecutorial misconduct occurring during trial. They argue that, combined with the other trial errors, they require reversal. Of course, we have already concluded that no other prejudicial trial errors took place. However, for the sake of thoroughness, we will address each claim of prosecutorial misconduct.
a. Opening Statement
During his opening statement, the prosecutor said that when Abbott hit the victim for reporting that Abbott had violated one of the rules at the rehabilitation facility where they were both staying, it resulted in Abbott being incarcerated for at least 90 days, which caused Abbott to carry a grudge against the victim. The prosecutor made no reference whatsoever to Abbott being on parole during his opening statement. However, apparently mistaken about what he had said, he later apologized to the trial court, outside the presence of the jury, for mentioning Abbott’s parole status to the jury, explaining that he had not understood the trial court to have prohibited him from doing so. Relying on the prosecutor’s incorrect recollection of what he said during his opening statement, and not the opening statement itself, Abbott asserts that the prosecutor committed misconduct by mentioning his parole status during opening statement. He did not make such mention.
We note that in contending that the prosecutor committed misconduct during his opening statement, Abbott’s appellate attorney cites only the prosecutor’s mistaken apology to the court and not the opening statement, itself.
See footnote 34, ante.
b. Testimony of the Victim
During his direct testimony, the victim said that he had met Garrett only once before, i.e., when he was walking in the street back from the dealer’s house to where he was working. During cross-examination of the victim by Garrett’s trial attorney, the victim was asked if the incident he described during his direct examination was the only time he had seen Garrett before the crimes. He said it was. Counsel for Garrett again asked the victim if he had ever seen Garrett before. The victim said he thought he had met him before, but he was not sure. However, he added that he must have met Garrett before because Garrett called him by his name during their encounter in the street. Counsel for Garrett then said, “This is what I am trying to get to, because you said this is the only time you met him. Now you think you might have met him in the past?” The victim said he might have met Garrett somewhere in the past, but he could not remember where. Counsel for Garrett persisted, saying, “Where did you meet him?” The victim said perhaps he had met Garrett once before but his “memory is not that good.” Counsel for Garrett had the victim testify that when he and Garrett met on the street, Garrett called the victim by his nickname. Counsel then elicited the victim’s testimony that Garrett had not identified himself during their encounter in the street. He then asked the victim, “How do you know the name ‘Clifford Garrett’?” The victim then told the prosecutor, “You told me we’re not supposed to bring up the past of where I have knew [sic] somebody or prison affiliation or something.” The trial court instructed the victim to answer whatever questions he was asked by the lawyers unless someone objected. The victim then said, “I met . . . Garrett previously in prison.” He added that he was under the impression that he was not supposed to say that he met anyone in prison. In response to questions by counsel for Garrett, the victim said that he had told only the prosecutor that he met Garrett in prison. In response to further questioning by Garrett’s attorney, the victim testified that that was how he knew Garrett’s name—not because someone after the crimes told him they were committed by Garrett. At the close of evidence in the trial, the parties stipulated that the victim had not told a representative of the District Attorney’s Office that he had met Garrett in prison, that Garrett had never been in the prison the victim identified as the one where they were housed together and Garrett and the victim had never been housed in the same state facility at the same time. Since it was the persistent questioning by trial counsel for Garrett, and not the prosecutor, that brought out the victim’s testimony about Garrett possibly being a felon, there is no basis to assert that the prosecutor committed misconduct in soliciting this evidence. To the extent Abbott is complaining that he was indirectly prejudiced by this information being heard by the jury, we note that he failed to object below to any of the questions asked by Garrett’s attorney and failed to move to strike the testimony. Finally, this testimony, to the extent it prejudiced Abbott, was completely undermined by the stipulation of the parties that the victim and Garrett had never been incarcerated together. Thus, the “bottom line” of this testimony was an impeachment of the victim’s memory and, veracity which could only have assisted Abbott.
The victim testified that he had short-term memory problems as a result of the beating. His mother testified that her 33-year-old son was “a little boy locked in a man’s body” who would never be able to take care of himself and he “doesn’t have a lot of recollection of things.”
c. Closing Argument
Abbott asserts that the prosecutor commented on him exercising his rights to counsel, to plead not guilty and to have a jury trial by saying the following, “What happened to [the victim] that night is he ran into a force of evil that is nothing like anything you or I have ever seen. . . . That man right there, James Abbott, the man in the tan coat hiding behind the attorney here, in the glasses, the weight.” The prosecutor’s comment was directed at the fact that Abbott’s appearance had changed dramatically from the time of the crimes to the time of trial and he was “hiding” behind that new appearance, hoping the victim and witnesses would not recognize him. It had nothing to do with his right to counsel, to plead not guilty and to have a jury trial. Moreover, the failure of his trial counsel to object to the comment waives his current claim. (People v. Mendoza (2007) 42 Cal.4th 686, 701; People v. Stanley (2006) 39 Cal.4th 913, 952.)
A witness testified that Abbott looked completely different at trial than he did at the time of the crimes, the victim did not recognize him in the courtroom, and the jury had photos of Abbott taken around the time of the crimes to compare with his appearance in the court room.
See footnote 37, ante.
Abbott also asserts that the prosecutor committed misconduct by saying that he was “a force of evil that is nothing like anything you or I have ever seen[.]” Again, Abbott failed to object to the remark below and therefore waived his present claim. Moreover, “‘“‘[a] prosecutor may “vigorously argue his case and” . . . “may use appropriate epithets.”’”’ [Citations.]” (People v. Stanley, supra, 39 Cal.4th at pp. 952-953 [Prosecutor’s remarks that defendant was “cold-blooded,” “a person with no soul” and someone “with no remorse” did not constitute misconduct given the brutal nature of the crimes].)
Abbott also takes issue with the prosecutor saying, after expressing gratitude that the dealer identified Abbott and Garrett as the victim’s attackers, “Jack Ruby had his day in court, and I’m not [equa]ting these guys with Jack Ruby . . . but everyone saw what he did. Now they’ve had their day in court. Please end it. Convict them on all counts.” As before, Abbott did not object to this remark below and therefore waived his misconduct claim. Moreover, it was a fair comment on the evidence—the dealer and the victim both identified Abbott as the one who beat the victim, much like millions of people watched Jack Ruby shoot Lee Harvey Oswald live on television. Abbott claims the prosecutor offered his personal opinion about the homeowner’s involvement in the crimes. However, what the prosecutor said was, “ . . . [A]s you can tell by the testimony of [the friend] and [the dealer], [the homeowner] was really not the kind of guy to be getting involved in this.” This was not only not a statement of the prosecutor’s personal opinion, it was a reasonable implication that could be derived, particularly from the testimony of the friend, that the dealer and the neighbor threatened and intimidated him into taking them to the victim.
Appellate counsel for Abbott failed to cite to that portion of the record containing this statement.
Disposition
The trial court is directed to amend Abbott’s abstract of judgment to show that the second five-year term in section 3 of the abstract was under section 667, subdivision (a), of the Penal Code, rather than just the Penal Code as the abstract currently states. As to Garrett, the trial court neglected to sentence him for his conviction of burglary, therefore, the matter is remanded for sentencing on that conviction. In all other respects, the judgments are affirmed.
We concur: HOLLENHORST, J., KING, J.
Abbott goes on to criticize the trial court’s explanation to the potential jurors of the right against self-incrimination. Again, Abbott does not state in what way the trial court’s comments are incorrect, how they even relate to the concept of reasonable doubt or how they, as he asserts, “compounded and reinforced the [reasonable doubt] voir dire instruction error.”
For the sake of completeness, we reproduce below all the trial court’s comments on the pages cited by Abbott, which are as follows, “. . . I want to read to you two other instructions which I think are also very important in the area of criminal law and procedure. And these instructions find their basis in the Fifth Amendment to the United States Constitution. Now, you all remember from your high school government classes that the Fifth Amendment is that amendment that provides, among other things, that no person can be forced to testify against themselves in a criminal proceeding. [¶] If you watch C-Span or even the news, you see people taking the Fifth all the time. That’s something constitutionally guaranteed all of us, any of us who happen to get into any kind of legal difficulty, have a right to be free from incriminating ourselves. That means, basically, you have a right to remain silent. [¶] You’ve all seen cop shows on TV where the rights are read to the person accused: You have a right to remain silent. [¶] That extends to proceedings such as this criminal trial. [¶] Now, I don’t know if either or both of [the defendants] are going to testify in this case. That’s a decision they have to make in consultation with the attorneys. But what’s important for you to know is that the law provides as follows: [¶] A defendant in a criminal trial has a constitutional right not to be compelled to testify. You must not draw any inference from the fact that a defendant does not testify. [¶] Further, you must neither discuss this matter, nor permit it to enter into your deliberations in any way. [¶] In deciding whether or not to testify, the defendants may chose to rely on the state of the evidence, or upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charges against him. No lack of testimony on the defendant’s part will make up for a failure of proof by the People so as to support a finding against him on any such essential element. [¶] This gets back to what I was talking about earlier. [The prosecutor], and [he] alone, has the burden of proof here. He and he alone has the obligation to present evidence. [¶] The defendants have their side of the story to tell, too. Obviously, you came in here and heard me read two charges. In a trial, there are many ways the defense can get its side of the story out without the defendants testifying. Two examples are the cross-examination of prosecution witnesses, evidence, or calling witnesses to talk on their behalf. But the important thing we must consider and have your commitment on, if they don’t testify, you must understand they have a constitutional right not to testify. And even more important, you cannot consider that. You cannot hold it against them if they elect not to testify. [¶] Can each of you assure us that if you are selected as jurors, if the defendants elect not to testify, that you won’t hold it against them? Can everyone do that?”
During argument to the jury, the prosecutor made only two references to the fact that the neighbor pled guilty to burglary and mayhem. He said that her plea, for which she received a prison term, indicated what she thought of the advise Garrett had given her in one of his letters for her to get the dealer to stop talking. Also, as part of his argument that Garrett was guilty as an aider and abettor of all the assaultive charged offenses, even though he did not actually strike the victim, the prosecutor pointed out that the neighbor had pled guilty to burglary and mayhem even though her participation in the beating of the victim was limited to her standing by the front door during it. Although the prosecutor did not, in his argument, stick to the purpose for introducing the plea form that he had enunciated to the trial court, we note that neither defense counsel objected to his remarks.
The friend also testified that when confronted by the dealer with the story about the drug rip off, the homeowner said that the victim and his companion had taken a lot of things from him and he was trying to get them out of his house. However, there was also evidence that the victim had been staying at the homeowner’s house for four weeks before the incident. The homeowner, the victim and his companion used methamphetamine together in the home. It was the homeowner’s truck that the victim’s companion was driving when the drug rip off occurred. The dealer testified that she and the neighbor persuaded the homeowner to take them to his home, where the victim and his companion were, so she could talk to them about the drug rip off. She denied that there was a plan to beat up the victim or his companion. There was no other evidence about what the homeowner knew about the intentions of Abbott and Garrett in going to the house or that he endorsed those intentions.
In his statement of facts, Abbott asserts that the homeowner claimed after the crimes that he had been forced to help Abbott and Garrett, but the dealer felt otherwise. He cites to Exhibit 47A in support of his assertion. However, that exhibit was never admitted into evidence. Abbott also cites Exhibit 47B for his assertion that, according to the dealer, the homeowner had “agreed” they could come into his house. However, Exhibit 47B was never admitted into evidence. Also in his statement of facts, Abbott asserts that the homeowner “pointed out the bedrooms” citing the Reporter’s Transcript at page 277. At that page, the dealer testified that the homeowner “made gestures and indications to her where to go” but when she added that the homeowner told them that the victim and his companion were in the bedrooms, the trial court sustained Abbott’s hearsay objection. Why Abbott should include this matter that he, himself, successfully objected to at trial, is a mystery to us. Abbott should have cited the Reporter’s Transcript at page 337, at which the dealer testified, without objection from anyone, that the homeowner said that the victim and his companion were in the bedrooms. Finally, Abbott asserts that the prosecutor said during his opening statement that the homeowner “agreed to take Abbott, Garrett, [the dealer and the neighbor] to his house.” What he actually said was, “ . . . [The dealer] confronts [the homeowner] . . . . [¶] [The homeowner], caught in a tight spot, agrees to take her back to his house.” [Italics added.]
In fact, the only mention of Abbott’s parole status was made by the victim during a non-responsive answer to the prosecutor’s question about what Abbott did after the victim told the director of the rehabilitation facility that defendant had broken one of the rules. The victim said that the director called Abbott’s parole agent. Abbott’s attorney did not object. He later explained that he did not want to call attention to the response by objecting to it. He declined the trial court’s offer to instruct the jury to disregard the reference (thus, Abbott cannot, in good faith, now object, as he does, to the absence of such an admonition) and he unsuccessfully moved for a mistrial based on it. Because the prosecutor did not, by his question, solicit the victim’s testimony that Abbott had a parole officer, we cannot conclude that he committed misconduct.