Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC801147
ELIA, J.A jury found defendant Francis Xavier Guilfoyle II guilty of stalking Chizuru Mori (Pen. Code, § 646.9(a)) (count one), violating a protective order protecting Mark Mistal (Pen. Code, § 273.6, subd. (a)) (count two), and stalking Mark Mistal (Pen. Code, § 646.9(a)) (count three). The trial court sentenced defendant to a total prison term of two years and eight months.
Under Penal Code section 646.9, "[a]ny person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking...."
On appeal, defendant alleges multiple trial errors, including the erroneous admission of evidence, prosecutorial misconduct, and instructional error. He also asserts that these errors resulted in cumulative prejudice that renders the trial fundamentally unfair. Finally, defendant argues that the amendment of section 4019 applies retroactively to increase his presentence conduct credit.
We affirm.
A. Evidence
1. Prosecution Evidence
Chizuru Mori and defendant were married in Japan in 1990, they lived there for about six years until moving to the United States together, and they divorced in 2004. Mori and defendant had two children, a daughter who was 17 years old at the time of trial and a son who was 14 years old at time of trial. She also had an older son from a previous marriage, who at the time of trial was going to be 25 years old. The older son's father lived in Japan and did not understand English.
Mori was the one who filed for divorce from defendant. After their divorce, defendant kept sending Mori lots of letters and e-mails asking her to remarry him; she estimated there were over a hundred such letters and e-mails. Defendant did not appear at the final divorce court date and he told her that he still believed that she was his wife. He was very obsessive in his communications to her, which scared her. Defendant tried to involve their children in his obsession to remarry her.
Mori and Mistal met and began dating in January 2007.
In August 2007, Mori told defendant that she was not going to communicate with him anymore. Mori stopped answering his phone calls. Defendant continued to call her and leave messages. He left a message that he would kill himself if she did not answer his call. This scared her children. Defendant was calling 20 to 30 times a day and sometimes leaving messages. Her oldest son called the police because defendant "sounded really scary" and they believed defendant would come to the house. Defendant was also sending text messages every day and sending e-mails.
In late August, the Sunday before Labor Day weekend 2007, Mori found she had a flat tire. The auto club told Mori that it looked like the air was let out of the tire and fixed it.
On the Saturday of Labor Day weekend, Mori's tire was again flat and she fixed it. On Sunday, Mori drove over to Mistal's residence and parked in the driveway.
Mistal lived at 134 Brooklyn Avenue in San Jose. Defendant received his mail at his brother's home, which was about two blocks away from 134 Brooklyn Avenue. Defendant sometimes took his children to his brother's house. Defendant knew where Mistal lived because he had picked up his son there once.
When Mori and Mistal went out to her car at about 12:30 p.m. on that Sunday of Labor Day weekend, Mori's tire looked almost flat. Mistal and Mori decided to drive in their separate cars to a Chevron gas station a couple of blocks away. As Mistal was getting into his car, he saw defendant drive by in a white station wagon. When defendant reached the end of the street, he made a u-turn, and followed their cars.
Mistal, who was in the lead, did not drive to the gas station because he was scared. Defendant was following Miro's car "very, very close[ly]" the entire time; his face had no emotion. Miro was scared. Instead, Mistal drove around for about 15 minutes unsuccessfully looking for a police station or fire station.
Mistal drove home and pulled into his driveway; Mori pulled in after him. Defendant parked on the street in front of Mistal's driveway, blocking them in. Mistal got out of his car and told Mori to stay in her car and lock the doors. Defendant got out of his car and approached. Mori thought he would do something bad to them and was really scared. Mistal told defendant not to come onto his property and then went into his house and telephoned the Sheriff.
Defendant was shouting at Mori and sounded really angry but she could not understand what he was saying. Mistal came back outside. Defendant threw a letter at Mori's car. Mistal picked it up, threw it back, and said to defendant, "I told you don't come over here." Defendant had an angry, menacing, scary face. Mistal was "pretty scared."
At that point, Sheriff's officers arrived. Some of the officers spoke separately to defendant for a long time and defendant eventually left. The officers advised Mori and Mistal to get a restraining order.
On September 4, 2007, defendant sent an e-mail to Mori. His message said that all he had wanted to do on Labor Day was give her two short letters but she would not even acknowledge him so he could hand it to her and she would not answer the phone or answer his text messages. He stated, "Ignoring me won't make me go away!!!!" He also declared, "[Y]ou vowed to be my wife and the mother of our children for better or for WORSE, in SICKNESS and in health, in good times and BAD, UNTIL DEATH do WE part...." He stated in the e-mail, "Sometimes I think that the only way I can make you happy is for me to DIE" and "[o]ther times, I have different thoughts...." He then stated: "One thing is for sure is that 134 Brooklyn is going to be a heart problem for you, so will any man who tries to put his penis between your legs, or any other part of your body, anywhere anytime as long as I am alive. YOU ARE MY WIFE, until death do we part.... sooner or later, one of us will die...." He also said, "I am human don't treat me like I am not. You wouldn't want to really see the animal in me. Francis is not a nice person. You know what I am capable of, DON'T PUSH ME." Mori took his words as a threat. Defendant warned in the e-mail that he would forward it to the children if she did not respond.
Defendant e-mailed his "father's rules" to his children. They prohibited the children from talking to Mistal and being in the same house as Mistal. The rules stated that the children were not to let Mistal into their home, go to Mistal's home, or spend any time with Mistal. Defendant stated that, if the children did not follow the rules, they would not see him forever.
On September 12, 2007, defendant forwarded the September 4, 2007 e-mail message to Mori to his two children, complaining to them that their mother had not replied and stating that he "assume[d] she got it and just ignored it like she does with my phone calls, phone messages, and e-mails, etc."
In early October 2007, Mistal went to court with Mori to get a restraining order against defendant. The restraining order issued in October included stay away orders protecting Mori and her two younger children. The restraining order required defendant to stay at least 300 yards away from Mori's home and from 134 Brooklyn Avenue in San Jose. Defendant stopped calling and e-mailing Mori only after she obtained the restraining order. After the restraining order was issued, defendant continued to contact the children in violation of the order.
In November 2007, defendant began participating in the Compensated Work Therapy (CWT) training program for veterans. Under the CWT program, veterans are given assignments at VA facilities. Defendant was assigned to work at both the Palo Alto and the Menlo Park campuses. He worked approximately 50 to 60 percent at the Palo Alto facility, primarily at building number seven. Defendant occasionally went to other buildings.
At the Palo Alto VA facility, defendant worked under the supervision of Tom McCarthy, a recreational therapist in the spinal cord injury unit housed in building seven. Defendant's work assignments were fitted into McCarthy's schedule. McCarthy could be reached by calling the general campus number, and pressing McCarthy's extension.
Mark Mistal was a quality improvement reviewer at the Veterans Hospital in Palo Alto. Mistal saw defendant at the VA four times. One time, defendant and he passed in a hallway. Defendant looked at him with "a sort of blank stare." Another day, at around 4:00 p.m. when Mistal was leaving work, defendant was sitting in a chair across from the elevators that Mistal used to leave the hospital. Mistal walked over to the elevator, pushed the button, and then got onto the elevator when it arrived. Meanwhile, defendant "just sat there and stared" and said nothing. This incident concerned Mistal. He perceived defendant's blank stares as menacing.
Mori received a letter, postmarked January 19, 2008, that said: "Hey, You might want to lock your door. Any nutcase can just walk right in!!! Make sure our kids are safe when you are not at home." Mori inferred the letter was from defendant and found it "really scary" that he came to her house and found it unlocked.
On a Saturday in February, either the 2nd or the 16th, when Mistal was at the VA to teach a clinical training class for new nurses, Mistal saw defendant on the surgical ward where he taught the class. Mistal was with several students and standing in the doorway of a patient's room facing out when defendant walked past empty handed. He had a menacing facial expression; he said nothing and stared Mistal "in the eye and moved on." Mistal perceived defendant as very aggressive and confrontational during the prior elevator incident and this February incident. McCarthy, defendant's CWT supervisor at the Palo Alto VA facility, did not work on February 2, 2008 or February 16, 2008.
Subsequently, Mistal saw defendant a fourth time at the VA when Mistal got onto one of the same elevators where he had previously seen defendant; defendant was on that elevator along with some other people. Defendant had a "kind of blank stare."
Defendant left things at Mori's home in violation of the restraining order. On February 8, 2008, defendant left a gift with a note in his handwriting.
Sometime around the end of February, incidents began occurring at Mistal's home. One morning at about 6:30 when he went outside to go to work, Mistal found an old automobile tire in the middle of his driveway. Mistal kicked the tire over to the side. When he came home after work at about 4:30 p.m., Mistal found the tire back in the center of the driveway. He kicked it off to the side again. The next morning, Mistal found two tires blocking his driveway. Mistal called the Sheriff and someone came and he made a report.
About a week later, Mistal went out to his driveway and found his car had a flat tire. Mistal took the tire to Wheel Works and was shown a puncture in the tire's sidewall. He had to pay about $150 to replace the tire. Mistal called the Sheriff.
On March 5, 2008, defendant sent a letter, in his handwriting, to his children in the mail. On March 10, 2008, he sent an e-mail to their daughter.
On about March 10, 2008, Mistal went out to go to work and found his driveway covered with oil, which appeared to be dirty engine oil. He took photos. Mistal again called the Sheriff.
On about March 21, 2008, Mistal saw defendant drive by his house while he was outside watering the plants. When Mistal saw a white station wagon driving slowly and passing his driveway, Mistal at first thought it was an electrician, who was doing some work at his home and who drove a very similar vehicle, returning from Orchard Supply. Mistal waved and defendant, who looked surprised, waved back and then accelerated and drove away down the street. Mistal did not call police because he did not understand that the act of driving by his home was a violation of the restraining order.
On March 29, 2008, defendant left an opening day baseball program for his son at Mori's home.
On about March 31, 2008, Mistal went out to go to work and found nails, together with some screws and perhaps some tacks, covering a 10 foot section of his driveway. He took photos. He reported the incident and cleaned up all the nails. When he returned home that afternoon, he again found nails covering his driveway. At about 5:00 p.m., after he had cleaned up the nails and was in his car about to leave to go see Mori, Mistal saw defendant in his white station wagon driving toward him. Defendant's car was intruding about a foot into Mistal's side of the street and Mistal veered off to the side to avoid being hit. As defendant drove by, defendant had a menacing expression and gave Mistal "the finger." Mistal turned around to follow him. He planned to call the Sheriff en route and hoped to find out where defendant lived, since defendant had refused to tell anybody where he was living. But defendant "floored it" and raced away. Mistal then called and spoke to a Sheriff's detective.
On the following day, April 1, 2008, when Mistal went out to go to work at about 6:30 a.m., he discovered nails on his driveway. He called the Sheriff again and took photos.
On April 2, 2008, Sergeant Dan Rodriguez, who was in charge of the domestic violence and hate crimes unit of the Sheriff's Office, was assigned to a stalking investigation of defendant. He contacted Mistal and Mori and took statements from them. Sergeant Rodriguez subsequently spoke with defendant by telephone. The sergeant asked defendant whether he had been driving by 134 Brooklyn Avenue, Mistal's home. Defendant admitted he had but asserted that he was not violating the restraining order by doing so but could not give the sergeant a logical explanation for this assertion. Defendant was "not being too cooperative over the phone." Sergeant Rodriguez arranged to meet defendant the following day, which was the only time convenient for defendant.
Despite their appointment scheduled for the next day, Sergeant Rodriguez decided to track down defendant because he believed, based upon their telephone conversation, that defendant was not going to show up. The sergeant went to the Veterans hospital and met with the VA police.
Edward Brown, a police officer with the Department of Veterans Affairs, was contacted by the Santa Clara County Sheriff's Department at around 4:30 p.m. on April 2, 2008. He was asked to assist in locating defendant. He and two other VA officers attempted to find defendant at the Menlo Park facility where they understood he was volunteering. Defendant's vehicle, a white, four-door station wagon, was found in one of the facility's parking lots but defendant was not in it.
On April 2, 2008, Ronald Hill, a recreational therapist assistant who helped run various therapy programs at the Menlo Park VA facility, was aware that the VA police were looking for someone and the Sheriff's Department was present. Hill had several prior convictions. Under the CWT program, defendant was assigned to work two days a week under Hill's supervision. That day, Hill spoke with defendant about his responsibility to show up for work the next day. Defendant indicated that he was not sure if he would show up because he had to take care of some business at the police station and he would show up if he was not detained. Defendant had said something to the effect that if the police kept him, he knew what to do and the boyfriend was not going to like it.
Officer Brown was asked by the Sheriff's detectives to let them know if defendant was located or if defendant's vehicle left the VA parking lot. Subsequently, while on routine patrol, Officer Brown observed a vehicle fail to stop at a traffic stop and then realized the driver was defendant. Officer Brown pulled the vehicle over and asked defendant to step out of the vehicle. Defendant was cooperative.
Officer Brown asked defendant whether he had a weapon. Defendant consented to be searched. The officer handcuffed defendant's hands behind his back and conducted a search for weapons. As the officer escorted defendant to his patrol car, he asked defendant if he knew what this was about. Defendant answered, "Yes. You are only making things worse."
Officer Brown asked for consent to search defendant's car, which defendant granted. Defendant became anxious, actively watched the search being done by other officers, and "dropped his head down and began shaking his head." Officer Brown asked defendant whether "there was anything that he needed to advise me about, just for the other officers' safety." Defendant replied that "he had some marijuana in the ashtray." A clear plastic bag was recovered but according to Brown, it did not contain any marijuana. A glass pipe resembling a cigarette was also seized as evidence.
Sergeant Rodriguez received a telephone call from Officer Brown informing him that defendant had been located. When the sergeant returned to the VA facility, he saw defendant was handcuffed and in the back seat of a patrol car. Sergeant Rodriguez testified that he was shown the items located in defendant's car, including some marijuana and a copy of an October 9, 2007 restraining order that prohibited defendant from getting within 300 yards of Mistal's house. Officer Brown turned defendant over to the Sheriff's Department and never cited defendant for a traffic violation.
Sergeant Rodriguez took custody of defendant, who had a "very quiet, blank stare, like he was not there." He found that stare "menacing for the victims" based on his experience in law enforcement.
Sergeant Rodriguez booked defendant into jail. The sergeant's partner, Detective Sung, asked whether defendant had any bizarre or aggressive behavior, which was a routine question on the booking questionnaire. Defendant answered that he felt like killing himself and others. The jail staff was notified of the statement.
That evening, Officer Brown spoke with Hill, who was still present at the Menlo Park facility. Hill told Brown that defendant had said that defendant was going to turn himself into the Sheriff and, if defendant went to jail, when defendant got out, "he would deal with the person responsible and he would not be back." Hill expressed concern that defendant was going to harm someone, either himself or someone else, based upon what defendant had said during their conversation. Hill spoke freely about defendant at first but, after Officer Brown said that he was going to provide the information to Sheriff Sergeant Rodriguez, Hill became less cooperative. Hill stated that he did not want to get involved and indicated he was afraid of defendant. Officer Brown telephoned Sergeant Rodriguez. Sergeant Rodriguez tried to interview Hill but found him to be very uncooperative. Hill would not answer a question before speaking to his supervisor.
Hill documented a statement made by defendant in an e-mail, which he had written not long after their interaction while the events were fresh in his memory. According to Hill, he had written the e-mail because it was his responsibility as defendant's supervisor to report his exchange with defendant to his own supervisor.
Bruce Nickles, a licensed marriage and family therapist who worked at the county jail, interviewed defendant who was on a suicide watch. Nickles assumed that defendant was in custody for violating a restraining order. He observed that defendant was hostile, angry and in a depressed mood. Defendant said he had been suicidal for years and that he had become suicidal when his wife and he divorced. Defendant several times stated, "I am already dead." When the conversation turned to his ex-wife's boyfriend, defendant "started getting quite hostile" about the boyfriend, Mark Mistal. Defendant stated that Mistal had tried to run defendant off the road and defendant had thrown some tacks or nails on Mistal's driveway. Nickles stopped defendant when defendant began "getting a bit threatening" toward Mistal. Nickles explained the limits of confidentiality and warned defendant that he might have to contact Mistal and warn him of the threat. Defendant responded, " '[W]ell, you tell him if he backs off, I will.' " Defendant expressed anger in his facial expression and intensity of his speech. Defendant made it clear that he was "willing to do time for whatever he might do" in the future. When he indicated his willingness to go to prison or jail, defendant was very angry.
Nickles indicted that when someone says he is suicidal and feels like he is dead already, there is no sense of self-preservation. Nickles had written in his notes that he believed there was a possibility defendant would commit murder because he believed that "anything was possible as far as the level of harm" since defendant did not exhibit any sign of self-restraint.
During the session with Nickles, defendant revealed that he knew the boyfriend's name, Mark Mistal. Defendant knew that Mistal worked at the Palo Alto VA facility, where defendant was getting treatment as an outpatient. Defendant knew Mistal's work phone number "off the top of his head" and gave it to Nickles. Defendant was "emoting anger and hostility about Mr. Mistal." Although Nickles attempted to be "really empathetic and supportive when it seemed appropriate, " defendant "remained hostile and angry" throughout the approximately hour long session. Nickles called Mistal and warned him of the threat. In the course of his career, this was the only Tarasoff warning he had ever given.
Mistal took Nickles's warning about defendant's threat seriously. He obtained a restraining order against defendant and moved from the house on Brooklyn Avenue.
2. Defense Evidence
Defendant testified on his own behalf. Mori was one who wanted the divorce. Defendant did not want the divorce because in their wedding vows they had pledged to "be together until death do us part." Defendant felt betrayed, rejected, and unhappy as a result of the divorce.
Defendant denied feeling jealous of Mistal when defendant learned that Mistal was Mori's boyfriend. He denied hating Mistal or wanting to kill either Mori or Mistal or wishing something bad would happen to them or his children. He stated that he still loved Mori. He stated that he loved his children very much and hoped that nothing bad ever happened to them.
Defendant denied calling Mori to threaten, harass, or annoy her. He said he just wanted to talk to her and the children.
Defendant admitted sending a lot of long e-mails to Mori after the divorce in an effort to understand whether it was possible to get back together but he was not trying to annoy her. Defendant admitted writing an e-mail to Mori in which he stated "till death do us part." He denied that the statement was a threat and claimed it was merely a restatement of their wedding vows. Defendant explained that he was e-mailing his children in 2007 because he wanted to maintain contact and have a relationship with them. He wanted to show them that he loved them and wanted to be a part of their lives. He denied he was sending a bunch of e-mails just to annoy people.
When Mori filed for a restraining order to protect herself and their children, defendant did not understand why the children were included. Defendant denied that he had left presents for the children in an attempt to harass, annoy or scare them or Mori. He claimed to have left gifts only on Christmas and Valentine's Day.
Defendant denied seeing Mistal at the VA facility on the four occasions mentioned by Mistal at trial. He denied being at the VA facilty to find and stalk Mistal. Defendant stated that he went there for medical and dental appointments and for CWT work. Defendant asserted that Mistal was mistaken about seeing him when Mistal was teaching a class on a Saturday in February.
Defendant explained that his blank stare to which others had referred was due to his poor eyesight and depression that caused him to stare into space. He denied staring at Mori, Mistal or Sergeant Rodriguez in a menacing or scary way.
When asked how he knew Mistal's phone number, defendant replied, "I only know the general VA's phone number, since he worked there." He indicated that was number he had given to Nickles.
Defendant acknowledged that he did not have to go down Mistal's street to get to his brother's house but asserted that it was an easier route from some directions. He indicated that that he went by Mistal's house to get his mail and go home.
Defendant denied letting air out of or puncturing Mori's tires. He denied placing tires on Mistal's driveway. He denied puncturing Mistal's tires. He denied putting oil on Mistal's driveway. Defendant denied dumping nails on Mistal's driveway.
Defendant described the driving incident on Mistal's street. Defendant recalled turning onto Mistal's Street. According to defendant, when Mistal realized it was defendant's car coming toward him, Mistal "swerved to the left, either to hit [defendant's] car or try to drive [defendant] into the parked car." Defendant gave Mistal "the finger" and drove on. When asked if he was "pretty mad" that Mistal tried to cause an accident, defendant replied, "Actually, if he would have done enough damage to my car, I would have gotten a better car. He had an Audi TT and I have an old station wagon, which is not in the best condition."
Defendant asserted that it was "against [his] beliefs, [his] spiritual beliefs to harm anybody." But he admitted he had sometimes had thoughts of harming himself. He confirmed that he had spoken to Nickles about those feelings. He also admitted telling police officers that he wanted to hurt or kill himself but denied that he meant that as a threat to Mori or Mistal.
Defendant denied that he intended that anything he said to Nickles to be a threat to another person. He explained what he meant by his statement, "If he backs off, so will I, " was that he wanted Mistal to stop bothering him. When defendant was asked whether he wanted to scare Mistal, defendant said that he wanted Mistal to leave him alone. Defendant said that there had been no problem with his relationship with Mori and their children before September 2007 but since then there had been "restraining orders and problems."
Defendant admitted that, when Mori refused to speak to him anymore in August 2007, he had said he would kill himself if she did not talk to him. He denied it was a threat. He admitted he had said in an e-mail to the children that he would kill himself if their mom did not talk to him but testified that he did not remember sending it. Defendant agreed that it was a threat if he said he would kill someone else but asserted that saying he would kill himself was not a threat. He testified, "[I]f I decide to do harm to myself, it is my choice to do what I want to do with my life."
When asked about the Labor Day 2007 incident, defendant explained that he happened to go by Mistal's house on his way to his brother's house to watch TV and "check out the football game." When asked why he tailgated Mori, he stated that he "wanted to hand her an envelope." He denied letting the air out of his ex-wife's tires.
Defendant admitted that in a September 4, 2007 e-mail to Mori, he said, "I hope you will read this and reply so I don't have to e-mail this to the kids." When asked whether this was a threat, defendant responded, "In what way?" Defendant acknowledged that he subsequently forwarded the e-mail to his two children.
Defendant conceded that in the September 4, 2007 e-mail he had stated, "I will do whatever I can to stop you from finding a new penis to put between your legs, or anywhere else you want to put it." He admitted he had typed: "[O]ne thing for sure is that 134 Brooklyn is going to be a heart problem for you, and so will any man who tries to put his penis between your legs, or any other part of your body, or anywhere, any time [sic], as long as I am alive." The prosecutor asked whether the following e-mail statement was a threat: "I am human. Don't treat me like I am not. You won't really want to see the animal in me. Francis is not a nice person." Defendant replied, "A threat in what way? I am threatening to what?" Defendant explained, however, that Francis was part of him, the person his father created, a "very abused child that never had an opportunity to make a life for himself and suffers every day from the family he was born into." He said, "She won't want to see that part of me." As to giving her a choice of "either happiness every day or heartache and misery and a lonely death" in the e-mail, defendant claimed that it was not a threat but a prediction. He said that a hypnotist had told Mori that "her soul [was] destined to have a lonely death" but he "wanted her to be with someone that loved her and actually would stay with her until her death."
Defendant acknowledged reading in a police report of interviews with his children that his son thought defendant might hurt him if defendant knew that he hung around with Mistal. Defendant did not agree that he had been terrorizing his children but could not explain why his son had said that.
When asked about the e-mails to his children ordering them not to speak to Mistal and to leave the house if Mistal came over, defendant claimed he was merely stating his preferences. Defendant acknowledged a September 6, 2007 e-mail to his children in which he stated he had rules he wanted them to follow and would explain later what he would do if he found out they had broken the rules. He denied he was threatening them. He acknowledged that one rule was he did not want his children and Mistal in the "same room, apartment or area." He acknowledged that another rule was that he wanted to know if their mom had a man or a visitor while they were home. Defendant denied he was asking them to be informants and asserted that he merely wanted to know what was going on in their lives.
Defendant admitted that he was present in court when a restraining order was granted against him. When asked about violating the court order that he not contact his ex-wife and his two children, defendant answered, "The judge told me that it was my choice how I contacted my children." Defendant claimed that he was not aware that the restraining order directed him not to contact "either directly or indirectly, " telephone, or send messages, mail, or e-mail to his wife and children "except for brief and peaceful contact as required by Court ordered visitation of the children, unless a criminal protective order says otherwise." He stated that was not what the judge had said and he went by what the judge had said. He claimed the judge had said it was his "choice to decide about birthday parties and birthdays and holidays." He did not remember the judge saying anything about Mistal's address and claimed he was unaware that the restraining order told him not drive by Mistal's house.
Defendant admitted saying that he wanted to kill himself and someone else but he denied the "someone else" was Mistal. He stated that he wanted to kill his father for abusing him as a child and causing so many problems in his life. He agreed that he was suicidal and homicidal toward one person. He claimed that he was referring to his father when he answered the booking question by indicating he wanted to kill someone else.
Defendant insisted that he merely told Nickles that a police officer claimed to have evidence that defendant had thrown nails on Mistal's driveway and that was the first time defendant had heard about the nails. He admitted telling Nickles that he was "already dead" and "it didn't matter." He admitted saying to Nickles that he was willing to go to prison but he stated that meant that he "was willing to go to prison for charges" on which he had been arrested and maintained that he had not said that he was going to do anything.
B. Alleged Evidentiary Errors
1. Defendant's Statements to Therapist Nickles
a. Procedural History and Evidence
Defendant moved in limine to exclude defendant's in-custody statements to therapist Nickles at trial. Defendant argued that there was no Tarasoff exception to the psychotherapist-patient privilege because he had not expressed any specific threat and, if the exception was determined to apply, only his specific statements triggering the warning were admissible. The motion noted that Nickles had testified at the preliminary examination that the threat was "non-specific" and "no specification or plan was stated."
The California Supreme Court held in Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 431: "When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus it may call for him to warn the intended victim or others likely to apprise the victim of the danger, to notify the police, or to take whatever other steps are reasonably necessary under the circumstances."
At the hearing on the motion, defense counsel indicated the motion was aimed at limiting Nickles's testimony to the specific things that his "client said or did" that triggered the Tarasoff warning and excluding testimony regarding defendant's depression, suicidal thoughts, and anything not clearly going into the decision to warn. Defense counsel agreed that the trial court could consider Nickles's preliminary hearing testimony in ruling on the motion if it wished.
No claim of error is asserted with regard to the court's reliance upon the transcript of the preliminary examination in lieu of a preliminary fact hearing. Neither the People nor defendant sought an in camera hearing. (See Mavroudis v. Superior Court (1980) 102 Cal.App.3d 594, 606 ["where an exception to a privilege depends upon the content of a communication, the court may require disclosure in camera in making its ruling"].)
The trial court ruled that the warning given by Nickles to Mistal and any communications by defendant that triggered the warning were not protected by the privilege. The court determined that the privilege did not preclude testimony regarding defendant's demeanor during the therapy session. But the court indicated that testimony regarding defendant being on suicide watch or any clinical diagnosis was not admissible over a claim of privilege.
The court specifically determined that the privilege did not prevent Nickles from testifying at trial, as he had at the preliminary examination, with regard to the following: defendant's statement that he (defendant) was "already dead"; defendant's expression of angry feelings toward his ex-wife's current boyfriend (Mistal); defendant's knowledge of Mistal's work phone number and his act of providing Mistal's phone number to Nickles, defendant's admission that he had thrown some nails or tacks on Mistal's driveway; defendant's statement, "well, you tell him if he backs off, I will"; defendant's hostile and threatening demeanor, defendant's statement indicating that he was aware his actions could result in jail or prison time and his response that it did not matter because he was "already dead"; the therapist's "impression" that defendant was in custody for violating a restraining order and was already at a level of hostility that had prompted him to commit acts of vandalism and reflected a potential for violence; defendant's threats of harm to his ex-wife's boyfriend; and the therapist's impression that defendant did not care about his own life based upon defendant's demeanor.
b. Applicable Law
A patient generally "has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist...." (Evid. Code, § 1014, see Evid. Code, §§ 1010, subd. (e), 1013.) For purposes of the psychotherapist-patient privilege, " '[C]onfidential communication between patient and psychotherapist' means information, including information obtained by an examination of the patient, transmitted between a patient and his psychotherapist in the course of that relationship and in confidence... and includes a diagnosis made and the advice given by the psychotherapist in the course of that relationship." (§ 1012; see Bus. & Prof. Code, § 2918.)
All further references are to the Evidence Code unless otherwise stated.
Section 1024 establishes the "dangerous patient" exception to the psychotherapist-patient privilege: "There is no privilege under this article if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger." (Italics added.) "[S]ection 1024 permits a psychotherapist to warn a potential victim of danger, and indeed the therapist has a common law duty to do so ([Tarasoff v. Regents of University of California (1976)] 17 Cal.3d 425)...." (People v. Wharton (1991) 53 Cal.3d 522, 554.) The degree of danger is not required to be a threat of murder.
The requirements of the exception are satisfied where "there is reasonable cause for the psychotherapist to believe that (1) the patient is dangerous and (2) disclosure of the communication is necessary to prevent any harm. (See People v. Wharton, 53 Cal.3d at pp. 548-563.)" (Menendez v. Superior Court (1992) 3 Cal.4th 435, 449.) "[T]he 'reasonableness' of the requisite 'reasonable cause to believe' must be determined in light of the standards of the psychotherapeutic community. The test is objective, but takes account of all the relevant circumstances; it is based on the norms prevailing among psychotherapists as a group, but allows broad discretion to the individual psychotherapist. In certain cases, expert testimony as to the relevant standards may be necessary." (Id. at p. 451.) The "dangerous patient" exception requires only the two prongs of reasonable cause for belief be shown. (Ibid.) It does not "demand that the psychotherapist must actually disclose the relevant communication or even issue a warning." (Ibid.)
"[W]here a psychotherapist warns a potential victim pursuant to section 1024, that statute permits the psychotherapist to reveal, in a later trial or proceeding, both the substance of the warning and the patient's statements, made in therapy, which caused or triggered the warning." (People v. Wharton, supra, 53 Cal.3d at p. 563.) But "the mere fact that some statements are nonprivileged by operation of section 1024 does not automatically make all of defendant's confidential communications to his therapists available to the prosecution. '[T]he psychotherapist-patient privilege is to be liberally construed in favor of the patient.' [Citations.] 'And, even when the balance tips in favor of disclosure, constitutional concerns require a strict circumscription of the scope of the disclosure.' [Cititation.]" (Id. at p. 554.) The trial court properly limits "application of section 1024 to those confidential communications that 'triggered' the decision to warn the victim." (Ibid.)
c. Analysis
Defendant's in limine argument was essentially that a patient's threat to a potential victim had to be made explicitly and could not be inferred from the patient's statements together with his demeanor. He is now asserting that the "dangerous patient" exception does not apply because "a finding that Mr. Nickles' belief that [defendant] presented a murderous threat to Mr. Mistal" was not reasonable based upon the evidence of the preliminary hearing and "there was no reasonable cause to believe disclosure was necessary to avert harm."
Nickles's testimony at the preliminary examination, which the trial court considered in ruling on defendant's in limine motion, showed the following. Nickles was a marriage and family therapist licensed by the State of California who worked with inmates in jail. During his April 8, 2008 in-custody interview with Nickles, defendant expressed anger and hostility toward Mark Mistal, his ex-wife's boyfriend. Defendant knew his name and work number, which caused Nickles to have significant concern. Defendant admitted that he had thrown some tacks or nails on Mistal's driveway with the intent to damage the tires of Mistal's automobile. Nickles explained the limits of confidentially under Tarasoff and warned defendant that, if he made threats, Nickles might need to advise Mistal of those threats. Defendant responded, "Well, you tell him if he backs off, I will." Defendant also indicated that he was willing to go to prison for whatever actions he might take. Defendant displayed a significant level of hostility and Nickles's clinical impression was that defendant presented a potential threat to Mistal's life. Defendant said several times that he (defendant) was "already dead." It was Nickles's impression that defendant did not care about his own life and, in that state, he could be lethal. Nickles warned Mistal of the possible threat by phone. He also contacted the VA police and the San Jose Police and gave a report to the Department of Corrections.
A communication between patient and psychotherapist loses its privilege protection once the specified factual predicate of section 1024 is met. (Menendez v. Superior Court, supra, 3 Cal.4th at p. 451.) But "[t]here is more to human communication than mere linguistic content." (People v. Lenix (2008) 44 Cal.4th 602, 622.) A speaker's body language and manner of expression contributes to the listener's understanding of what is said. The emotions and demeanor displayed by a patient while communicating with a therapist may add to or alter the import of a patient's words. Section 1012 itself defines "confidential communication" to include "information obtained by an examination of the patient." We conclude the "dangerous patient" exception encompasses a patient's statements and his associated demeanor that together trigger the exception (§ 1024).
Of course, Nickles was in the best position to evaluate defendant's demeanor and, as stated, an individual therapist has "broad discretion" in determining the requisite "reasonable cause to believe." (Menendez v. Superior Court, supra, 3 Cal.4th at p. 451; see § 1024.) The Supreme Court has "emphasize[d] that the 'dangerous patient' exception requires only reasonable cause for belief by the psychotherapist in the dangerousness of the patient and the necessity of disclosure." (Menendez v. Superior Court, supra, 3 Cal.4th at p. 451.)
On appeal, defendant complains for the first time that "there was no expert testimony regarding the norms prevailing among psychotherapists as a group" and "Nickles' training [on Tarasoff] was never established." As indicated, the Supreme Court has recognized that expert testimony as to the professional norm among psychotherapists may be necessary in some circumstances to determine "the 'reasonableness' of the requisite 'reasonable cause to believe.' " (Menendez v. Superior Court, supra, 3 Cal.4th at p. 451.) But the court has not held that it is a prerequisite for application of the "dangerous person" exception. In this case, the trial court could make the determination that the exception applied without expert assistance. (See Menendez v. Superior Court, supra, 3 Cal.4th at p. 451; Mavroudis v. Superior Court (1980) 102 Cal.App.3d 594, 605.) Defendant had the burden of producing evidence of the prevailing professional standards since the evidence was sufficient to support a finding that the "dangerous person" exception applied. (§ 550.)
In general, the party claiming a privilege has the burden to prove, by a preponderance of the evidence, the facts necessary to sustain the claim, and the opposing party has the burden to prove, by a preponderance of the evidence, an exception to the privilege. (See Assem. Com. on Judiciary com, 29 B, Pt. 1 West's Ann. Evid. Code (1995 ed.) foll. § 405, p. 375; Evid. Code, §§ 115, 500.)
Defendant further argues that, even if this court concludes the "dangerous person" exception applied, the trial court's ruling went beyond the proper scope of the exception. Defendant maintains that only his specific statements were admissible. Defendant asserts that the exception certainly "does not cover the therapist's gut feelings and opinions based upon [his] demeanor" and his "expressed hostility and admitted vandalism." He complains that Nickles testified as an expert on issues, his testimony was based on "vague recollections of [defendant's] statements" and was irrelevant to the issues at trial, his opinions as to whether defendant was dangerous were not the proper subject for expert testimony and outside the scope of the "dangerous person" exception. He insists that the exception does not cover the reasons that Nickles came to his conclusion to warn.
As stated, defendant's non-privileged "communications" under the "dangerous person" exception encompass the demeanor accompanying his verbal statements that cumulatively triggered Nickles's decision to warn Mistal. The vagueness of Nickles's "impressions, " his observations of demeanor and recollection of defendant's words, was a matter for cross-examination. "A witness's uncertainty about his or her recollection of events does not preclude admitting his or her testimony. (People v. Avery (1950) 35 Cal.2d 487, 492... [uncertainty of recollection goes to the weight and not admissibility of a witness's testimony].)" (People v. Lewis (2001) 26 Cal.4th 334, 357.)
In addition, a therapist's statements to a patient may not be privileged if necessary to the meaning of a patient's statement that is admissible under section 1024. For example, defendant's statement, "[W]ell, you tell him if he backs off, I will, " was a response to Nickles explanation of the limits of confidentially and the possibility that Nickles would disclose any threat from defendant to Mistal. The context adds meaning to defendant's words.
Insofar as the trial court's ruling encompassed Nickles's opinion that defendant was dangerous within the meaning of section 1024, we discern no error because, even assuming that a psychotherapist's uncommunicated professional opinion regarding dangerousness is usually protected by the psychotherapist-patient privilege, such opinion was integral to the exception under section 1024. (See §§ 1012 ["confidential communication between patient and psychotherapist" "includes a diagnosis made and the advice given by the psychotherapist in the course of that relationship"], 1014, 1024.) The trial court's ruling that certain expected testimony from Nickles was admissible against a claim of privilege was not, however, a ruling that such evidence was admissible against all objections. At trial, defendant failed to object on any evidentiary ground to Nickles's testimony, which he now asserts was irrelevant or "in the nature of an expert on mental health issues and the potential threat to someone in [defendant's] condition." These claims were waived by the failure to object to Nickles's testimony at trial. (§ 353; see §§ 210, 350, 801.)
Defendant also points out that Nickles testified at trial that defendant was on a suicide watch in violation of the court's pretrial ruling. At trial, defendant failed to object to that testimony. Any objection that the evidence was offered in violation of the trial court's in limine ruling was not preserved for appellate review. (See People v. Davis (2009) 46 Cal.4th 539, 612-613; § 353.)
d. Alleged Violation of U.S. Constitution
Defendant contends that admission of Nickles's testimony violated the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution because his recall of defendant's statements was "so vague that it hampered cross-examination and rendered the trial unfair." He cites People v. Price (1991) 1 Cal.4th 324, 421, which held that "the trial court did not exceed its discretion when it concluded that [an expert's] unwillingness to reveal the names of the persons whose statements formed the basis of the opinions he proposed to give on direct examination would impair effective cross-examination to such an extent that the testimony should not be admitted." The Supreme Court in Price reasoned: "If a witness frustrates cross-examination by declining to answer some or all of the questions, the court may strike all or part of the witness's testimony. (People v. Daggett (1990) 225 Cal.App.3d 751, 760....) From this rule it follows logically that if, as here, the court determines in advance that the witness will refuse to answer such questions, the court may decline to admit the testimony in the first instance." (Ibid.)
Defendant failed to object to Nickles's testimony on the ground now raised and, consequently, no constitutional claim regarding the admission of Nickles's testimony was preserved for appeal. (§ 353, subd. (a); People v. Bolden (2002) 29 Cal.4th 515, 547.) In any event, the record does not reflect that Nickles refused to answer questions on cross-examination. Defendant has not cited any authority establishing that any of the named federal constitutional rights require exclusion of testimony from a prosecution witness whose memory is vague or has faded.
2. Officer Brown's Testimony Impeaching Ron Hill
During Officer Brown's testimony, the prosecuting attorney announced that he intended to ask a question of the officer to impeach Hill. Officer Brown was asked whether Hill had said that defendant had stated, with regard to turning himself in, that "if he [defendant] goes to jail when he gets out he would deal with the person responsible and he would not be back." Defense counsel unsuccessfully objected on hearsay grounds. Officer Brown confirmed that was what he had been told by Hill. On appeal, defendant contends that the hearsay was not admissible as a prior inconsistent statement by Hill under section 1235.
Section 1235 provides: "Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770." "Section 1235 permits an inconsistent statement of a witness to be used as substantive evidence if the statement is otherwise admissible under the conditions specified in Section 770...." (Cal. Law Revision Com. com, 29B, Pt.4 West's Ann. Evid. Code (1995 ed.) foll. § 1235, pp. 224-225.)
"[U]nless the interests of justice otherwise require, Section 770 permits the judge to exclude evidence of an inconsistent statement only if the witness during his examination was not given an opportunity to explain or deny the statement and he has been unconditionally excused and is not subject to being recalled as a witness." (Cal. Law Revision Com. com, 29 B, Pt. 4 West's Ann. Evid. Code (1995 ed.) foll. § 770, pp. 224-225.)
"The 'fundamental requirement' of section 1235 is that the statement in fact be inconsistent with the witness's trial testimony. (People v. Sam (1969) 71 Cal.2d 194, 210....) Normally, the testimony of a witness that he or she does not remember an event is not inconsistent with that witness's prior statement describing the event. (People v. Green (1971) 3 Cal.3d 981, 988....) However, courts do not apply this rule mechanically. 'Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness' prior statement [citation], and the same principle governs the case of the forgetful witness.' (Ibid.) When a witness's claim of lack of memory amounts to deliberate evasion, inconsistency is implied. (Id. at pp. 988-989.) As long as there is a reasonable basis in the record for concluding that the witness's 'I don't remember' statements are evasive and untruthful, admission of his or her prior statements is proper. (People v. O'Quinn (1980) 109 Cal.App.3d 219, 225....)" (People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220.) The trial court's evidentiary ruling is reviewed for abuse of discretion. (People v. Geier (2007) 41 Cal.4th 555, 586.)
After Hill testified on direct examination that defendant had said that he would show up for work if he were not detained by police the next day, the prosecutor asked, "And did he suggest what would happen if he were detained or was not able to show up?" Hill replied, "I don't understand your question." The prosecutor said, "You said that he told you if he was not detained by the police he would come to work, right?" Hill answered, "Yes." The prosecutor then asked, "Did he say what would happen if he were arrested or detained or kept by the police?" Hill responded, "That he wouldn't show up."
The prosecutor then tried another tack, "Okay. [¶] And do you remember I had you review an e-mail that you originally sent on, I believe that day...." Hill stated, "Correct." The prosecutor asked, "And do you remember that [defendant] said if the police keep him tomorrow, he knows what to do and the boyfriend is not going to like it?" After an objection was overruled, the prosecutor asked, "Do you recall that?" Hill replied, "I did, yes." The prosecutor inquired, "He said that to you?" Hill replied, "If I could remember. It has been some time ago." The prosecutor asked, "Would it help you to look at your e-mail?" Hill answered, "No." After an objection to another question was sustained, the prosecutor asked: "Did... [defendant] tell you that if the police keep him tomorrow, he knows what to do and the boyfriend is not going to like it?" Hill then replied, "Something to that effect. [¶]... I don't know exactly what the words were. I read that in my e-mail. That's what I wrote. That's what I wrote." Hill could not remember if he asked defendant what he was going to do or what defendant meant by "the boyfriend is not going to like it."
Later, after Hill testified on direct that he had told Officer Brown of his concern that defendant was going to harm someone based upon a statement by defendant, the prosecutor asked, "Did [defendant] tell you if he goes to jail, he would deal with the person responsible and he would not be back?" Hill replied, "I don't remember him saying that. [¶] Who would not be back? [Defendant] would not be back?" The prosecutor stated, "That would have been my follow-up question to you. [¶] What is your understanding of the defendant's meaning?" Hill answered, "I don't remember saying that." Hill denied being fearful of retaliation but indicated that he had some feelings around coming to court and testifying. He denied being afraid that he would get in trouble with defendant. He admitted telling Officer Brown that he did not want to be involved. On cross-examination, Hill indicated that he was unhappy to be in court testifying but not because he was afraid of defendant.
The trial court had the opportunity to view witness Hill's demeanor and, consequently, was in the best position to assess the credibility of his asserted failures to remember and to determine whether or not Hill was being deliberately evasive when he failed to recall what defendant had said to him. (See People v. Coffman (2004) 34 Cal.4th 1, 78.) The record does not demonstrate the trial court abused its discretion in overruling the hearsay objection and impliedly admitting Brown's testimony under the prior inconsistent statement exception to the hearsay rule (§ 1235).
3. Defendant's Statement to Officer Brown in Violation of Miranda
a. Evidence Code Section 402 Hearing
Out of the jury's presence, Edward Brown, a police officer for the Department of Veteran Affairs testified that, at about 4:30 p.m. on April 2, 2008, he was contacted by the Santa Clara Sheriff's Department and asked to help locate defendant. Officer Brown subsequently observed a vehicle run a stop light and then realized defendant was the driver. The officer pulled the vehicle over, identified himself, and asked defendant to step out. The officer asked whether defendant had any weapons; defendant indicated he did not. When asked for permission to conduct a pat down, defendant consented. Because the Sheriff's Department was looking for defendant, the officer restrained him in handcuffs, placed him in the back seat of his patrol car, and contacted Sergeant Rodriguez and Detective Sung. Defendant was handcuffed for officer safety reasons. Officer Brown believed he was merely detaining defendant while waiting for the Sheriff's Department to respond. He did not explain to defendant why the Sheriff's Office was looking for him. The officer asked defendant "if he knew what this was about" after handcuffing him. Defendant responded, Yes, " and told the officer that he was "only making things worse."
As far as Officer Brown knew, there was no active arrest warrant. But defendant was never free to leave. Officer Brown was not going to allow defendant to leave unless he was told by the Sherriff's Department to release him. Officers from the Sherriff's Department arrived within approximately 10 to 15 minutes.
The trial court concluded that defendant had been temporarily detained by Officer Brown rather that arrested. It ruled that defendant's answer to the officer's question was admissible under Miranda (Miranda v. Arizona (1996) 384 U.S. 436).
b. Miranda
"Custodial interrogation" means "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." (Miranda v. Arizona, supra, 384 U.S. 436, 444.) Generally, "persons temporarily detained pursuant to [ordinary traffic] stops are not 'in custody' for the purposes of Miranda." (Berkemer v. McCarty (1984) 468 U.S. 420, 440 [104 S.Ct. 3138]; see Pennsylvania v. Bruder (1988) 488 U.S. 9, 11 [109 S.Ct. 205] (per curiam).) "[T]he safeguards prescribed by Miranda become applicable as soon as a suspect's freedom of action is curtailed to a 'degree associated with formal arrest.' California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam). If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him 'in custody' for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda. See Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977) (per curiam)." (Berkemer v. McCarty, supra, 468 U.S. at p. 440.)
For purposes of Miranda, "custody must be determined based on how a reasonable person in the suspect's situation would perceive his circumstances." (Yarborough v. Alvarado (2004) 541 U.S. 652, 662 [124 S.Ct. 2140].) Thus, "[a] policeman's unarticulated plan has no bearing on the question whether a suspect was 'in custody' at a particular time; the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." (Berkemer v. McCarty, supra, 468 U.S. at p. 442, fn. omitted.) "Two discrete inquiries are essential to the [in-custody] determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances [fn. omitted], would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Once the scene is set and the players' lines and actions are reconstructed, the court must apply an objective test to resolve 'the ultimate inquiry': '[was] there a "formal arrest or restraint on freedom of movement" of the degree associated with a formal arrest.' California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam) (quoting Mathiason, 429 U.S., at 495, 97 S.Ct., at 714). The first inquiry... is distinctly factual.... The second inquiry, however, calls for application of the controlling legal standard to the historical facts." (Thompson v. Keohane (1995) 516 U.S. 99, 112 [116 S.Ct. 457].)
In this case, defendant was subjected to restraint associated with a formal arrest. (See In re Tony C. (1978) 21 Cal.3d 888, 895 ["actual or threatened physical restraints are the characteristics of a full-blown arrest (Pen. Code, § 835)"]; see also People v. Pilster (2006) 138 Cal.App.4th 1395, 1404-1405.) After being handcuffed by a police officer, a reasonable person would think that he was not free to leave and, in fact, defendant was not free to leave. Thus, regardless of Officer Brown's subjective belief with regard to whether he was detaining or arresting defendant, defendant was "in custody" for purposes of Miranda when questioned. (Cf. Stansbury v. California (1994) 511 U.S. 318, 319 [114 S.Ct. 1526], per curiam [officer's subjective and undisclosed view concerning whether person interrogated is suspect irrelevant to assessment whether person is in custody].)
"Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent" but "interrogation" does not include police words or actions that are "normally attendant to arrest and custody." (Rhode Island v. Innis (1980) 446 U.S. 291, 300-301 [100 S.Ct. 1682].) No suggestion has been made in this case that Officer Brown's question was an inquiry "normally attendant" to custody.
It would appear that defendant's statement in answer to Officer Brown's question was obtained in violation of Miranda (see Miranda v. Arizona, supra, 384 U.S. at pp. 444, 478-479; Pennsylvania v. Muniz (1990) 496 U.S. 582, 600-601 [110 S.Ct. 2638] [custodial interrogation includes express questioning]). The record in this case leads us to conclude, however, that admission of the statement was harmless beyond a reasonable doubt. (People v. Cunningham (2001) 25 Cal.4th 926, 994; Arizona v. Fulminante (1991) 499 U.S. 279, 310 [111 S.Ct. 1246]; Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824].) Properly admitted evidence showed that when defendant was taken into custody by Officer Brown, defendant had already spoken with Sergeant Rodriguez about violating the restraining order against him and defendant had admitted to the sergeant that he had driven by Mistal's house, defendant had an appointment to speak with the sergeant in person the following day, and defendant had told Hill, his CWT supervisor, that there was a possibility he would be detained by the Sheriff. Thus, defendant's "yes" answer to the officer's question "do you know what this is about" was harmless beyond a reasonable doubt in the unique context of this case. His further comment, that Officer Brown was only making things worse, was not additionally incriminatory.
4. Defendant's Statement to Sergeant Rodriguez
a. Evidence Code Section 402 Hearing
In an in limine hearing, Sheriff Sergeant Rodriguez testified that in April 2008 he investigated a potential violation of a restraining order protecting Mistal. After receiving a call from Mistal, the sergeant began looking for defendant at the Palo Alto Veteran Administration hospital and in Menlo Park. The sergeant made contact with defendant after defendant had been placed in the back of a VA police car with his hands handcuffed behind his back.
Sergeant Rodriguez asked defendant if he had received the restraining order that day. Defendant indicated that he had possessed it for months. The sergeant asked defendant if he was supposed to stay away from the address specified in the restraining order. Defendant answered that he only listens to the judge. At that point, the sergeant took custody of defendant and transported him to the Sheriff's Office, where he attempted to interrogate defendant. At some point, the sergeant read defendant his Miranda rights. Defendant indicated that he wanted a lawyer and questioning ceased.
Sergeant Rodriguez then proceeded to book defendant into jail and asked the routine questions on a booking form containing boxes to be checked. One of the booking questions, asked of every arrestee, was "do you have any bizarre or aggressive behavior?" Defendant replied that he "want[ed] to kill himself and others." Sergeant Rodriguez then posed several follow-up questions. He asked "when" defendant wanted to kill somebody. Defendant said for the last year and yesterday. The sergeant asked "who" defendant wanted to kill but defendant would not tell him. When defendant was subsequently interviewed by the jail nurse and the DOC officer, the sergeant was present and heard defendant say that he wanted to kill himself and others.
The court ruled that defendant's responses to police questions asked while defendant was in handcuffs in the back of the patrol car were not admissible. It determined that defendant's response to the standard question in the booking questionnaire concerning bizarre or aggressive behavior was admissible. The court ruled that the follow-up questions and defendant's responses were not admissible.
b. Miranda Exception for Routine Booking Questions
"[T]he term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response." (Rhode Island v. Innis, supra, 446 U.S. 291, 301-302.)
"Routine booking" questions are excepted from Miranda. (Pennsylvania v. Muniz, supra, 496 U.S. 582, 601 (plur. opn. of Brennan, J.).) This exception permits police to ask, without the prior administration of a Miranda warning, questions to obtain "biographical data necessary to complete booking or pretrial services." (Ibid.) In Pennsylvania v. Muniz, the defendant had been asked seven questions (his name, address, height, weight, eye color, date of birth, and current age) routinely asked when a booking center received persons suspected of driving while intoxicated. (Id. at pp. 585-586.) Those questions appeared "reasonably related to the police's administrative concerns" since the state court had found the information had been requested for only record keeping purposes and the Supreme Court concluded that the questions fell outside the protections of Miranda. (Id. at pp. 601-602.) Questions that are designed to elicit incriminatory admissions, however, cannot be asked during booking unless preceded by a Miranda warning and waiver of rights. (Id. at p. 602, fn. 14.)
People v. Rucker (1980) 26 Cal.3d 368, which defendant cites, predates Pennsylvania v. Muniz, supra, 496 U.S. 582. In addition, Rucker has been abrogated by constitutional amendment. (People v. Hall (1988) 199 Cal.App.3d 914, 919-920.)
Booking questions asked for administrative purposes of ensuring institutional security or the safety or health of inmates and staff have survived Miranda challenges. (See United States v. Washington (9th Cir. 2006) 462 F.3d 1124, 1132-1133 [FBI agent's inquiry regarding "gang moniker" was routine booking question asked to ensure prisoner safety]; cf. U.S. v. Carrillo (9th Cir. 1994) 16 F.3d 1046, 1049 [question to arrestee at detention center whether "he had any drugs or needles on his person" justified by public safety exception to Miranda]; State v. Geasley (1993) 619 N.E.2d 1086, 1093 ["The police must be permitted some leeway into inquiring into the present medical condition of the arrestee. The purpose of such inquiry is not to elicit incriminating responses, but rather to ensure the safety and well-being of the suspect while in the custody of the police"]; cf. also New York v. Quarles (1984) 467 U.S. 649, 656 [104 S.Ct. 2626] [exception to Miranda for police officers' "questions reasonably prompted by a concern for the public safety" based upon particular exigency].)
Here, the booking question posed to defendant was "do you have any bizarre or aggressive behavior?" Apparently, this was a standard question on the written booking form routinely asked of arrestees. Defendant argues that his response must be excluded because the question "had a high potential to elicit an incriminating response" under the particular circumstances of the case, which Sergeant Rodriguez knew as the investigating officer.
On appeal, defendant contends that the booking officer is "meant to check the box [on the booking questionnaire form] or not based on his observation of the inmate, not [to] question the inmate about his opinion of his own bizarre or aggressive behavior." There was no evidence adduced at the preliminary fact hearing to establish that assertion and this reviewing court cannot speculate.
The booking question at issue targets an arrestee's present behavior. The information sought is relevant to administrative decisions with respect to housing and supervision of arrestees in jail, including decisions whether to do further psychological evaluation or to place an inmate on suicide watch. While the question could be worded better, the question does not appear designed to elicit an incriminatory admission. The evidence did not show that question was so closely connected to the crimes under investigation that the officer should have known that it was reasonably likely to elicit an incriminating response. The trial court did not err in concluding that the routine booking exception applied.
5. Evidence of Marijuana in Defendant's Car
Without objection or motion to strike, Officer Brown testified that defendant stated that he had some marijuana in the ashtray after the officer had asked whether there was anything defendant needed to advise him about, just for the safety of other officers, who were at that time searching defendant's car. When the prosecutor then asked whether marijuana had been recovered, Officer Brown replied: "It was a clear, plastic bag. There was no marijuana in it. But he also had a glass-" Defense counsel interposed a relevance objection. Before the court ruled, the officer finished his sentence: "--pipe." The court overruled the objection.
Defendant waived his objection to defendant's statement that there was marijuana in the ashtray by failing to timely object or move to strike the evidence. (Evid. Code, § 353.) Although Officer Brown's answer to whether the marijuana was recovered was irrelevant (see Evid. Code, § 210), it was not prejudicial because it was ameliorating evidence favorable to defendant. Defendant waived any objection to the officer's testimony regarding the pipe since he did not object or move to strike. (Evid. Code, § 353.)
Defendant alternatively suggests that defense counsel's failure to timely object to the marijuana evidence was ineffective assistance of counsel. (See Strickland v. Washington (1984) 466 U.S. 668, 687-696 [104 S.Ct. 2052].) He maintains that defense counsel could have no tactical reason for failing to object to Officer Brown's testimony concerning the marijuana evidence on sections 350, 352, and 1101 and due process grounds.
"Defendant has the burden of proving ineffective assistance of counsel. (People v. Malone (1988) 47 Cal.3d 1, 33....) To prevail on a claim of ineffective assistance of counsel, a defendant ' "must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice." ' (People v. Hart, supra, 20 Cal.4th at p. 623.) A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. (Strickland v. Washington (1984) 466 U.S. 668, 689 [104 S.Ct. 2052, 80 L.Ed.2d 674].) Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts. (Id. at p. 690 [104 S.Ct. at pp. 2065-2066].) To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266....)" (People v. Maury (2003) 30 Cal.4th 342, 389.)
Even assuming there could be no satisfactory tactical reason for failing to object to the testimony related to the presence of marijuana in defendant's vehicle, we find no prejudice under Strickland. Although generally illegal, possession of marijuana for personal use is a victimless crime and unrelated to the charges in this case. It can be a misdemeanor offense (see Health & Safety Code, § 11357) and possession for personal medical purposes has been decriminalized in California (see Health & Safety Code, § 11362.5). The prosecutor did not mention or rely on the evidence in his closing argument. The trial court instructed the jurors against letting bias or prejudice influence their decisions. On the record before us, there is no reasonable probability, sufficient to undermine confidence in the outcome, that, but for defense counsel's failure to object to the marijuana evidence, the result of the proceeding would have been different. (See Strickland v. Washington, supra, 466 U.S. at pp. 694-695.)
C. Prosecutorial Misconduct
Defendant argues that the prosecutor committed misconduct in cross-examining defendant and making his closing argument and asserts, without any citation to the record, that "[t]he court overruled most of the objections."
" 'To preserve a claim of prosecutorial misconduct for appeal, a defendant must object and seek an admonition if an objection and admonition would have cured the harm.' (People v. Kennedy (2005) 36 Cal.4th 595, 618....) The objection must be made on the same ground upon which the defendant now assigns error. (People v. Jones (2003) 29 Cal.4th 1229, 1260....)" (People v. Redd (2010) 48 Cal.4th 691, 734.) "A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 820.) "[F]ailure to request the jury be admonished does not forfeit the issue for appeal if ' "an admonition would not have cured the harm caused by the misconduct." ' [Citation.]" (Ibid.)
Contrary to defendant's assertions, the record does not demonstrate that it would have been futile to object and request an admonishment or that an admonition would not have been curative. In addition, the record does not reveal an egregious pattern of prosecutorial misconduct rendering the trial fundamentally unfair and constituting a denial of due process under the federal Constitution. (See People v. Morales (2001) 25 Cal.4th 34, 44 ["A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process"]; People v. Hill (1998) 17 Cal.4th 800, 819 [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]; accord, Darden v. Wainwright (1986) 477 U.S. 168, 181 [106 S.Ct. 2464]; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643 [94 S.Ct. 1868].)
1. Alleged Prosecutorial Misconduct During Cross-examination of Defendant
a. Son's Hearsay Statement
The prosecutor asked defendant about his son's statement to police that his son thought defendant might hurt him if defendant knew his son was hanging around Mistal. Defense counsel unsuccessfully objected on relevance grounds. Defendant argues that the prosecutor's question constituted prosecutorial misconduct because the question involved irrelevant hearsay and was more prejudicial than probative. Without objection, the prosecutor asked defendant to explain the son's statement. Defendant asserts this question constituted prosecutorial misconduct because the question asked for speculative, irrelevant evidence and the prosecutor was improperly inflaming the jurors' passions. Defense counsel did not object to the questions on prosecutorial misconduct grounds. Therefore, these misconduct claims were forfeited.
These claims also fail on the merits. Defendant testified that he loved Mori and his children and would never want anything bad to happen to them and he also indicated that none of his e-mails were intended to be threats. His son's statement to police was relevant to the stalking charges, which required proof that defendant made a credible threat with the requisite specific intent, and to impeach. "Section 1250, subdivision (a), of the Evidence Code creates an exception to the hearsay rule for evidence of a declarant's statements regarding his or her then existing state of mind or emotion, when the declarant's state of mind or emotion is at issue in the case...." (People v. Ruiz (1988) 44 Cal.3d 589, 608.) A police report may be admissible under section 1280. (Rupf v. Yan (2000) 85 Cal.App.4th 411, 430, fn. 6; see § 1280 [official record exception to hearsay rule].) "[I]n determining whether a threat occurred, the entire factual context, including the surrounding events and the reaction of the listeners, must be considered. [Citation.]" (People v. Falck (1997) 52 Cal.App.4th 287, 298.) The son's reaction to defendant's communications had probative value with regard to pivotal issues of credible threat and intent.
For purposes of section Penal Code section 646.9, " 'credible threat' means a verbal or written threat, including that performed through the use of an electronic communication device, or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct, made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family, and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family." (Pen. Code, § 646.9, subd. (g).)
Moreover, "[a]lthough it is misconduct for a prosecutor intentionally to elicit inadmissible testimony (People v. Bonin (1988) 46 Cal.3d 659, 689...), merely eliciting evidence is not misconduct." (People v. Scott (1997) 15 Cal.4th 1188, 1218.) The record does not demonstrate that the prosecutor thought he was eliciting inadmissible evidence when he asked those two questions. (People v. Pinholster (1992) 1 Cal.4th 865, 943.)
b. Alleged Badgering of Defendant
Defendant asserts that "[t]he prosecutor's manner of questioning was objectionable." He claims the prosecutor badgered him by standing close to him and yelling, which was an offensive tactic to portray him as one unworthy of respect or dignity.
Not long into cross-examination, defense counsel objected to a line of questioning. The court announced a sidebar conference and then had a conversation with counsel out of the jury's presence. The court stated that two deputies were present for security reasons and told the prosecutor that the court was uncomfortable with his "proximity to the defendant" and asked the prosecutor to step away when he was questioning defendant unless showing the defendant a document because the court was concerned with safety. Defense counsel interjected, "I didn't specifically make an objection." The court responded that it thought defense counsel was concerned. Defense counsel then asserted that he was objecting to "the manner in which the questions were being asked, standing right next to my client and basically yelling at my client." The court reflected back, "You felt they were overly argumentative and confrontational, " and indicated that the issue had been addressed. The court then instructed the prosecutor to formally ask "may I approach?" before approaching defendant. Defense counsel thanked the court.
Later in cross-examination, defense counsel objected to a question as argumentative. The court asked counsel to the sidebar and then, out of the jury's presence, indicated the area of inquiry was "highly relevant." Defense counsel explained his objections went to the form of the question. When neither the court nor the prosecutor could remember the question, the question was withdrawn. Subsequently, defense counsel objected to a question as an attempt by the prosecutor to shift the burden of proof. The court instead sustained the objection on the basis that the question was argumentative and then said to the prosecutor, "And I am just going to see if you could tone things down a bit."
The trial court itself raised the issue of the prosecutor's proximity to defendant during questioning and directed the prosecutor to step back. Only then did defense counsel voice any concern about the prosecutor's manner of examination. The court did not overrule the defendant's belated objection but rather further instructed the prosecutor to formally ask to approach defendant when necessary. Defense counsel did not ask for the jury to be admonished. Thereafter, defendant never objected on grounds of prosecutorial misconduct. Nevertheless, at one point, the judge suggested the prosecutor "tone things down a bit." Defendant's failures to object to alleged "badgering" on the ground of prosecutorial misconduct and request admonishment of the jury were not excused on grounds of futility.
c. Inquiries into Defendant's Understanding of Threat
After defendant admitted telling Miro that he would kill himself if she did not talk to him but denied he was making a threat, the prosecutor asked hypothetically, "Would you see it as a threat if you threatened to kill one [Miro's] children if [she] didn't talk to you." Defense counsel unsuccessfully objected that the question was irrelevant and argumentative. After defendant indicated that it would be a threat if he said that he was going to kill somebody, the prosecutor asked, "So you admit if... you're threatening to kill someone, that's a threat, right?" Defense counsel unsuccessfully objected that the question called for a legal conclusion and was irrelevant. Much later, the prosecutor asked defendant, "Have you threatened to kill your brother, too?" Defense counsel unsuccessfully objected that the question was irrelevant and argumentative.
Defendant now claims that these questions were objectionable because they implied facts not in evidence and the "prosecutor inflamed the jurors by implying inadmissible character evidence" and "suggesting that [defendant] had been dangerous and violent to his own children and his brother." Defense counsel never objected on grounds of prosecutorial misconduct and, therefore, he forfeited his present claims. The record does not show it was futile to object and request an admonition.
Defendant also argues that the prosecutor engaged in prosecutorial misconduct by asking two other questions concerning threat. The prosecutor inquired, without objection, with regard to defendant's e-mail statement that "I hope you will read this and reply so I don't have to e-mail this to the kids": "Isn't that a threat, if she doesn't reply to you, you are going to e-mail this very embarrassing and obscene e-mail to her children?" The other question followed defendant's admission that he did forward the e-mail to his children: "So you follow-up on your promises, your threats, don't you?" The court sustained an objection to the latter question on the ground it was argumentative and reminded the jury that questions of counsel are not evidence in the case.
Defendant now suggests that these questions attempted to improperly inflame the jurors and "suggest [defendant] was already carrying out threats pursuant to the charges." The defendant did not object to these two questions on the ground of prosecutorial misconduct and, consequently, such objections were not preserved for appellate review.
d. Epithets
Defendant complains that the prosecutor repeatedly referred to him during closing argument as "mentally unstable, suicidal, homicidal, and murderous" and objection at trial was futile.
Before trial, the defense counsel made a motion that the People refrain from appealing to the bias, prejudice or emotions of the jury by referring to defendant with epithets, derogatory words or labels. The prosecutor stated that he would "make the appropriate legal arguments based on the facts." The trial court denied the motion because, until the evidence was presented at trial, it was not clear what language would be appropriate. Nevertheless, the trial court told the prosecutor to avoid prejudicial comments. At trial, the prosecutor referred to defendant as a "nutcase" when questioning Mori but withdrew the question following defense objection that the question was improper. The judge called for a sidebar discussion in which she told the prosecutor to not use that term in front of the jury and then sustained an objection to the question in front of the jury and told the jury that the question and response were withdrawn. The record does not demonstrate that defense objections to epithets used at trial necessarily would have been rejected by the court.
During cross-examination of defendant, defendant agreed that he had said that he wanted to kill himself and someone else. The prosecutor inquired whether defendant would agree that he was suicidal and homicidal. The prosecutor asked other questions related to defendant being suicidal and homicidal. The prosecutor asked whether defendant agreed that he was mentally unstable. After defendant explained that the name Francis, which was mentioned in an e-mail that he had sent, was part of him, the prosecutor asked without objection, "That's the homicidal, murderous part of you?"
The use of derogatory terms with reference to a defendant is not necessarily misconduct. (See People v. Friend (2009) 47 Cal.4th 1, 32.) "When a defendant chooses to testify concerning the charged crimes, the prosecutor can probe the testimony in detail and the scope of cross-examination is very broad. [Citations.]" (People v. Dykes (2009) 46 Cal.4th 731, 764.) The prosecutor did not engage in improper disparagement during his cross-examination of defendant. His questions were grounded in the evidence and issues at trial.
e. Questions regarding Defendant's Obsession and Killing Mistal
At the end of cross-examination, after discussing the tailgating incident, the prosecutor asked, without objection, "You are going to continue with your obsession until you kill Mr. Mistal, aren't you." Defendant answered, "No." He then asked, without objection, "You are going to continue with your obsession until you force your wife to do what you want and take you back, right?" Defendant now claims that these questions constituted prosecutorial misconduct because they were intended to berate defendant and inflame the passions of the jury. Like other allegations of prosecutorial misconduct, this claim was forfeited by failing to object and ask for a jury admonition below.
We note that the court instructed the jury that nothing the attorneys said was evidence and their questions were not evidence and that only the witnesses' answers were evidence. The court also admonished the jury to "not assume that something is true just because one of the attorneys asked a question that suggested it was true."
2. Alleged Prosecutorial Misconduct During Closing Argument
a. Epithets
Defendant now complains that the prosecutor repeatedly used epithets, "such as mentally imbalanced, homicidal, creepy and a 'nut job.' " "Closing argument may be vigorous and may include opprobrious epithets when they are reasonably warranted by the evidence." (People v. Sandoval (1992) 4 Cal.4th 155, 180.) In this case, defense counsel failed to object or seek an admonition with regard to most of the alleged epithets and consequently, as to use of those terms, defendant forfeited his claims of prosecutorial misconduct. (Cf. People v. Farnam (2002) 28 Cal.4th 107, 200.) The record does not demonstrate that it was futile to raise valid objections.
When the prosecutor then declared that defendant was a "nut job" who was "obsessed with Mr. Mistal, " defense counsel objected that the argument was improper in that it appealed to the jury's bias. Although the court overruled that specific objection, the court told the jury that "statements made and characterizations made by counsel during closing argument are not evidence in the case" and admonished the jury to not consider any of the statements as evidence. The court informed the jury that it would be instructed that "there should be no appeal to feelings of bias and prejudice on your part" and asked the jury to "apply those instructions."
The prosecutor, in rebuttal argument, assailed the defense counsel's argument and defendant: "Now, that's a good job of lawyering, of turning night into day, of white into black. It has nothing to do with the evidence in this case. [¶] I do not mean to attack [defense counsel]. It is very hard to represent someone as guilty and as creepy and as dangerous as this man." Defense counsel objected on prosecutorial misconduct grounds to the attack on him and labeling of and use of epithets against defendant. The court warned the prosecutor to use caution and told the jury that "these terms are not evidence" and "should not be used for any purpose during your deliberations."
Following argument, defense counsel again explained on the record, out of the jury's presence, his objection to the prosecutor's use of the term "nut job." The court explained that it had overruled the objection because the term was "related to a term that is part of the evidence in the case" and the court concluded that its use did not rise to the level of misconduct.
"When a defendant makes a timely objection to prosecutorial argument, the reviewing court must determine first whether misconduct has occurred, keeping in mind that ' "[t]he prosecution has broad discretion to state its views as to what the evidence shows and what inferences may be drawn therefrom" ' (People v. Sims (1993) 5 Cal.4th 405, 463...), and that the prosecutor 'may "vigorously argue his case, "... "[using] appropriate epithets warranted by the evidence." ' (People v. Fosselman (1983) 33 Cal.3d 572, 580....)" (People v. Welch (1999) 20 Cal.4th 701, 752-753.) We do not think that use of the terms "nut job" or "creepy" constituted misconduct in light of the evidence. Even if use of those terms crossed the line, no prejudice has been shown in light of the judge's admonishment and instruction to the jury and the record as a whole.
b. Arguing Facts Not in Evidence
Defendant now asserts that the prosecutor improperly argued on facts not in evidence when he asserted in closing that Nickles had interviewed thousands of people in jail and all but defendant had backed off when warned about making threats. Nickles had testified that he had worked as a therapist for the jail for almost five years, seeing eight to ten people per day. Over the five years, he had seen hundreds. Nickles had agreed that the number of people whom he had seen in jail "could be" in the thousands. In the course of his career, he had issued only one Tarasoff warning, the warning concerning defendant.
Misstating the evidence or arguing facts not in evidence during argument is prosecutorial misconduct. (See People v. Davis (2005) 36 Cal.4th 510, 550; People v. Osband (1996) 13 Cal.4th 622, 698.) "A prosecutor engages in misconduct by misstating facts, but enjoys wide latitude in commenting on the evidence, including the reasonable inferences and deductions that can be drawn therefrom. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 95....)" (People v. Hamilton (2009) 45 Cal.4th 863, 928.) The prosecutor's comment was grounded in the evidence at trial. By not objecting at trial, defendant forfeited this claim of misconduct since the record does not establish that objection or request for admonition was futile. (Cf. People v. Bennett (2009) 45 Cal.4th 577, 616; People v. Davis, supra, 36 Cal.4th at p. 550.) In any case, there was no reasonable likelihood that the jurors, who heard Nickles's testimony, were misled. (See People v. Thompson (2010) 49 Cal.4th 79, 120.) The court instructed the jury that argument and remarks by counsel were not evidence and we presume the jury followed those instructions. (See People v. Hamilton, supra, 45 Cal.4th at p. 957.)
c. Arguing Conviction Would Help Defendant
The prosecutor ended his rebuttal closing argument with the following remarks: "And I think whether you're an alcoholic, whether you are a drug addict, whether you are obsessive-compulsive, common wisdom is that the first step into [sic] getting help or changing your behavior is you have to admit when you have a problem. [¶] He can't admit it. You could help him by convicting him, sending a signal that he is wrong and he screwed up. That's all I am asking. [¶] Help him out by convicting him, and then he could get help and then he could begin to change his behavior. Do it for him. That's the first step. Your verdict of guilty would be the first step." Defendant now contends for the first time that this argument constituted prosecutorial misconduct.
We recognize that "[t]he closing statements of counsel should relate to the law and the facts of the case as each side interprets them" (People v. Hawthorne (1992) 4 Cal.4th 43, 60) and "prosecutors should not purport to rely in jury argument on their... personal beliefs based on facts not in evidence" (People v. Medina (1995) 11 Cal.4th 694, 776). But here, defendant forfeited his prosecutorial misconduct claim by failing to object and request an admonition at trial. We do not agree that an admonition would not have cured the potential harm.
We also note that, shortly after the prosecutor's rebuttal argument, the jury was instructed. The court told the jury: "Do not let bias, sympathy, prejudice, or public opinion influence your decision. [¶] You must reach your verdict without any consideration of punishment." The court also stated: "You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom." The court again made clear to the jury that nothing the attorneys had said was evidence. The court instructed: "In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence.... Only the witnesses [sic] answers are evidence." As to applying the law, the jury was instructed, "You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." The jury was told that its "role is to be an impartial judge of the facts, not to act as advocate for one side or the other."
D. Ineffective Assistance of Counsel
Defendant argues that defense counsel rendered ineffective assistance of counsel by failing to object to prosecutorial misconduct or to request an admonition of the jury. We have previously stated the well settled standard for establishing ineffective assistance of counsel. As indicated, " '[d]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.' [Citations.]" (People v. Salcido (2008) 44 Cal.4th 93, 172.) "A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel. The appellate record, however, rarely shows that the failure to object was the result of counsel's incompetence; generally, such claims are more appropriately litigated on habeas corpus, which allows for an evidentiary hearing where the reasons for defense counsel's actions or omissions can be explored. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267....)" (People v. Lopez (2008) 42 Cal.4th 960, 966.)
In this case, defense counsel may have deliberately decided not to object to avoid highlighting certain prosecutorial questions or statements, especially where objection was not clearly warranted. He may have let certain questions or argument pass because he concluded that jurors would be more sympathetic to defendant if they viewed him as a man with emotional problems who did not fully appreciate the threatening nature of his actions or less sympathetic to the prosecution if the jurors thought the prosecutor was bullying defendant. Defense counsel may have concluded objection to certain prosecutorial conduct was unnecessary because the court's instructions would be sufficient to avoid any harm. The appellate record does not disclose whether counsel had legitimate tactical reasons for failing to object to the prosecutor's cross-examination questions or argument now alleged to be prosecutorial misconduct. (See People v. Huggins (2006) 38 Cal.4th 175, 251; People v. Stewart (2004) 33 Cal.4th 425, 509.) "[I]f the record does not preclude a satisfactory explanation for counsel's actions, we will not, on appeal, find that trial counsel acted deficiently. [Citation.]" (People v. Stewart, supra, 33 Cal.4th at p. 459.)
Moreover, in view of the record as whole, including the strong evidence of the charged offenses, the jury's ability to evaluate defendant's testimony on the pivotal issue of intent, and the court's admonitions and instructions to the jury, we conclude that prejudice has not been affirmatively proved. (See Strickland v. Washington, supra, 466 U.S. at pp. 693-696.)
E. Instructional Error
Defendant contends that the court's instructions did not convey to the jury that it was required to find a concurrence of act and specific intent with respect to the credible threat element of stalking. Citing People v. Alvarez (1996) 14 Cal.4th 155, defendant argues that the court's failure to include stalking's specific intent requirement (intent "to place the other person in reasonable fear...") in concurrence instruction constituted error. Citing People v. Lee (1987) 43 Cal.3d 666, defendant asserts that the error effectively removed an issue from jury's consideration and is reversible under the Chapman standard of review. (Chapman v. California (1967) 386 U.S. 18, 21 [87 S.Ct. 824].)
In Alvarez, supra, the Supreme Court concluded that the trial court erred "insofar as its instruction on the concurrence of act and 'specific intent' did not include the crime of murder." (People v. Alvarez, supra, 14 Cal.4th at p. 220.) The trial court had instructed: " 'In each of the crimes charged in Counts Two, Three and Five of the information, namely, robbery, auto theft and robbery, there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator and unless such specific intent exists the crime to which it relates is not committed.' " (Id. at p. 219.) The Supreme Court determined, however, that reversal was not required since "[a]n instruction on murder substantially covered the concurrence of act and 'specific intent.' " (Id. at p. 220.)
In People v. Lee, supra, 43 Cal.3d 666, 676, the court held that the Chapman standard of review applied "where conflicting specific intent and implied malice instructions have been given" with regard to attempted murder since the conflicting instructions were "constitutionally deficient." (Id. at pp. 670-676.)
In this case, the trial court instructed that "[t]he crimes charged in Counts 1, 2 and 3 require proof of the union, or joint operation of act and wrongful intent." It also told the jury: "The following crimes require a specific intent: stalking by repeated following or malicious harassing, as charged in Count[s] 1 and 3. [¶] For you to find a person guilty of these crimes, that person must not only intentionally commit the prohibited act but must do so with a specific intent. The act and the specific intent required are explained in the instruction for that crime. [¶] The specific intent required for the crime of stalking by repeated following or malicious harassing is that he or she intentionally did a wrongful act or that he or she acted with the unlawful intent to disturb, annoy or injure someone else." The court defined the crime of stalking: "To prove the defendant is guilty of the crime of stalking the People must prove that: [¶] Number one, the defendant willfully and maliciously harassed or willfully, maliciously and repeatedly followed another person; [¶] And two, that the defendant made a credible threat with the intent to place the other person in reasonable fear for his or her safety or for the safety of his or her immediate family." (Italics added.) The trial court told the jury that "[s]omeone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to disturb, annoy or injure someone else."
"It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. [Citations.] '[T]he fact that the necessary elements of a jury charge are to be found in two instructions rather than in one instruction does not, in itself, make the charge prejudicial.' [Citation.] 'The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.' [Citation.]" (People v. Burgener (1986) 41 Cal.3d 505, 538-539, disapproved on another ground in People v. Reyes (1998) 19 Cal.4th 743, 756.)
The instruction regarding union of act and intent, unlike the similar instruction in Alvarez, included the crime at issue, in this case stalking. The intent with which a credible threat must be made for stalking to be proved was stated in the stalking instruction. The jury was told to pay careful attention to all the instructions and to consider them together. The instructions, taken as a whole, fully conveyed the requirement that the prosecution prove that the credible threat was made in concurrence with the specific intent to cause the victim to reasonably fear for the victim's own safety or the safety of the victim's immediate family. Thus, even if the concurrence instruction was erroneous as alleged, any error was harmless. (See People v. Alvarez, supra, 14 Cal.4th at p. 220.)
F. Cumulative Prejudice
Citing People v. Hill (1998) 17 Cal.4th 800, 847, defendant claims that the stalking convictions must be reversed because the trial errors, in combination, deprived him of a fair trial and violated his federal due process rights. "[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (Id. at p. 844.)
For the most part, we have rejected defendant's assignments of error. Upon careful consideration, we conclude there was no miscarriage of justice under the state Constitution (Cal. Const., art. VI, § 13) and defendant was not denied a fair trial or due process under the federal Constitution. (See People v. Jenkins (2000) 22 Cal.4th 900, 1056.) "Defendant was entitled to a fair trial but not a perfect one. [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1009.)
G. Presentence Conduct Credit
Defendant was sentenced on December 19, 2008. Penal Code section 4019 was amended in 2009, effective January 25, 2010 (Cal. Const., art. IV, § 8, subd. (c)(1)), to provide, with exceptions not here applicable, for a prisoner to earn one day of presentence conduct credit for every one day of actual custody served. (See Stats. 2009-2010, 3rd Ex.Sess., ch. 28 (S.B.18), § 50, pp. 4427-4428.) Previously existing law had generally authorized two days of presentence conduct credit for every four days spent in actual presentence custody. Defendant argues that the 2009 amendments apply retroactively to him.
Penal Code section 4019 now provides in pertinent part: "(b)(1)... [F]or each four-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or road camp.... [¶] (c)(1)... [F]or each four-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established by the sheriff, chief of police, or superintendent of an industrial farm or road camp.... [¶] (f) It is the intent of the Legislature that if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody...."
Prior to amendment, Penal Code section 4019 read in part: "(b) [F]or each six-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or road camp. [¶] (c) For each six-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established by the sheriff, chief of police, or superintendent of an industrial farm or road camp.... [¶] (f) It is the intent of the Legislature that if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody." (Stats.1982, ch. 1234, § 7, p. 4553.)
The issue whether the newly amended Penal Code section 4019 applies retroactively is presently unsettled and the appellate courts are divided on the question. The California Supreme Court has granted review in a growing number of cases. This court's view is that it is not retroactive.
The Supreme Court has granted review in a number of cases raising the issue whether Penal Code section 4019, as amended to increase presentence custody credits for certain offenders, applies retroactively. (See People v. Brown (2010), review granted June 9, 2010, S181963 [lead case; 3d Dist.--held retroactive]; People v. Rodriguez (2010), review granted June 9, 2010, S181808 [5th Dist. --held prospective]; People v. House (2010) review granted June 23, 2010, S182813 [2d Dist., Div. 1--held retroactive]; People v. Landon (2010) review granted June 23, 2010, S182808 [1st Dist., Div. 2--held retroactive]; People v.Pelayo (2010) review granted July 21, 2010, S183552 [1st Dist., Div. 5--held retroactive]; People v. Otubuah (2010) review granted July 21, 2010, S184314 [4th Dist., Div. 2-held prospective]; People v. Hopkins (2010) review granted July 28, 2010, S183724 [6th Dist.--held prospective]; People v. Norton (2010) review granted Aug. 11, 2010, S183260 [1st Dist., Div. 3-held retroactive]; People v. Weber (2010) review granted Aug. 18, 2010, S184873 [3d Dist.]; People v. Sonnier (2010) review granted Sept. 1, 2010, S183604 [4th Dist., Div. 1].)
1. General Legal Principles Regarding Retroactivity
Penal Code section 3 provides: "No part of it is retroactive, unless expressly so declared." This section codifies the general presumption against retroactivity. (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208, fn. 11; In re Estrada (1965) 63 Cal.2d 740, 746.) "It is a widely recognized legal principle... that in the absence of a clear legislative intent to the contrary statutory enactments apply prospectively." (Evangelatos v. Superior Court, supra, 44 Cal.3d at pp. 1193-1194.) Ordinarily, "the absence of any express provision directing retroactive application strongly supports prospective operation of the [statute]." (Id. at p. 1209.)
On the other hand, Penal Code section 3 is "not a straitjacket." (In re Estrada, supra, 63 Cal.2d 740, 746.) "Where the Legislature has not set forth in so many words what it intended, the rule of construction should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent. It is to be applied only after, considering all pertinent factors, it is determined that it is impossible to ascertain the legislative intent." (Ibid.) Even where the Legislature has not expressly stated its intent that a statute operate retroactively, courts "may infer such an intent from the express provisions of the statute as well as from extrinsic sources, including the legislative history. (See Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1210....)" (Preston v. State Bd. of Equalization (2001) 25 Cal.4th 197, 222.)
2. Section 59 of 2009 Statute Amending Penal Code Section 4019
Defendant maintains that section 59 of the statute amending Penal Code section 4019 assigns the task of recalculating credits to the California Department of Corrections and Rehabilitation (CDCR) and if the newly amended Penal Code section 4019 was applied only prospectively, the CDCR "would have nothing to do." That uncodified section of the statute reads: "The Department of Corrections and Rehabilitation shall implement the changes made by this act regarding time credits in a reasonable time. However, in light of limited case management resources, it is expected that there will be some delays in determining the amount of additional time credits to be granted against inmate sentences resulting from changes in law pursuant to this act. An inmate shall have no cause of action or claim for damages because of any additional time spent in custody due to reasonable delays in implementing the changes in the credit provisions of this act. However, to the extent that excess days in state prison due to delays in implementing this act are identified, they shall be considered as time spent on parole, if any parole period is applicable." (Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 59, p. 4432.)
Section 59 of the statute contains no specific language expressing a legislative intent to make the statute's credit provisions retroactive or prospective even though other statutes indicate that the Legislature knows how to express its intent clearly. (See e.g. Pen. Code, §§ 296.1 [specified provisions pertaining to collection of specimens, samples and print impressions "shall have retroactive application"]; 12281, subds. (a) and (b) [immunity from criminal prosecution under section 12280 "shall apply retroactively"]; Stats. 2007, ch. 420, § 2, p. 2916 ["It is the intent of the Legislature that the amendments to Section 12022.6 of the Penal Code by this act apply prospectively only and shall not be interpreted to benefit any defendant who committed any crime or received any sentence before the effective date of this act"].) When considered in the context of the statute's actual credit provisions, it is clear that section 59 of the statute had nothing to do with the timing of the application of the statute's credit provisions.
The statute rewrote a number of custody credit provisions. The applicable Legislative Counsel's Digest states: "This bill would instead provide that certain prisoners shall earn one day of credit for every one day served either in the state prison or in a local facility prior to delivery to the state prison. This bill would provide for up to 6 weeks of additional credit for the successful completion of certain programs offered by the department, as specified. This bill would also expand an existing program for extra time credits for inmates assigned to conservation camps to apply to inmates who are assigned to correctional institutions as inmate firefighters and to inmates who have completed the training for either of those assignments, as specified. This bill would also revise the time credits for certain prisoners confined or committed to a county jail or other specified facilities, as provided. [¶] This bill would also provide criteria for the denial and loss of these credits, and would make various conforming and technical changes." (Legis. Counsel's Dig., Sen. Bill No. 18 (2009-2010 3rd Ex. Sess.) ch. 28, p. 4393.)
The statute added Penal Code section 2933.05 (Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 39, p. 4421), which requires the Secretary of the CDCR to "promulgate regulations that provide for credit reductions for inmates who successfully complete specific program performance objectives for approved rehabilitative programming...." (Pen. Code, § 2933, subd. (a).) That section mandates that "[r]egulations promulgated pursuant to this subdivision shall specify the credit reductions applicable to distinct objectives in a schedule of graduated program performance objectives concluding with the successful completion of an in-prison rehabilitation program." (Ibid.) It states: "Commencing upon the promulgation of those regulations, the department shall thereafter calculate and award credit reductions authorized by this section." (Ibid., italics added.)
The statute also rewrote Penal Code section 2933.3 and, among other things, added new subdivisions providing for additional conduct credit. Subdivision (b) of Penal Code section 2933.3 states that "any inmate who has completed training for assignment to a conservation camp or to a correctional institution as an inmate firefighter or who is assigned to a correctional institution as an inmate firefighter and who is eligible to earn one day of credit for every one day of incarceration pursuant to [Penal Code] Section 2933 shall instead earn two days of credit for every one day served in that assignment or after completing that training." Subdivision (c) of Penal Code section 2933.3 provides that "inmates who have successfully completed training for firefighter assignments shall receive a credit reduction from his or her term of confinement pursuant to regulations adopted by the secretary." (Italics added.) Penal Code section 2933.3 expressly provides that, as to the newly added subdivisions, "[t]he credits authorized in subdivisions (b) and (c) shall only apply to inmates who are eligible after July 1, 2009." (Pen. Code, § 2933.3, subd. (d), italics added.)
Section 59 of the statute (Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 59, p. 4432) cannot be reasonably construed, in light of these other specified provisions, as expressing any general legislative intent to give all the new credit provisions full retroactive effect. Courts "must harmonize 'the various parts of a statutory enactment... by considering the particular clause or section in the context of the statutory framework as a whole.' [Citations.]" (People v. Murphy (2001) 25 Cal.4th 136, 142.)
Furthermore, other new provisions indicate that conduct credit changes must be earned, which in turn implies that inmates generally earn conduct credits as provided by the law in effect at the time. The Legislature explicitly stated that "[c]redit is a privilege, not a right" and it "must be earned and may be forfeited." (Pen. Code, § 2933, subd. (c); see Pen. Code, § 2933.05, subd. (b) ["Program credit is a privilege, not a right"].) Subdivision (f) of Penal Code section 4019 states in pertinent part, with an exception not here applicable: "It is the intent of the Legislature that if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody...." (Italics added.) Retroactive application of the increases in presentence custody credits under the amended Penal Code section 4019 would result in a windfall to prisoners who were held in presentence custody before its effective date.
Section 59's legislative command that the CDCR "implement the changes made by this act regarding time credits in a reasonable time" and that "[a]n inmate shall have no cause of action or claim for damages because of any additional time spent in custody due to reasonable delays in implementing the changes in the credit provisions of this act" (Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 59, p. 4432) is most reasonably understood as referring to the CDCR's new administrative responsibilities with regard to implementation of the forthcoming mandated regulations. It reflects the Legislature's intent to avoid state liability for administrative delays in applying the new credit regulations.
As indicated by the limited retroactivity provision contained in Penal Code section 2933.3, subdivision (d), the Legislature knew how to expressly make a provision retroactive if it wished. Certainly, no particular legislative intent regarding the retroactivity of Penal Code section 4019 may be gleaned from this section of the enacted bill. In our view, section 59 of the statute does not evidence any legislative intent to have the CDCR recalculate, under the new version of Penal Code section 4019, the presentence conduct credit of every prisoner who is in its custody and was sentenced before its effective date of January 25, 2010. That would be an enormous, and possibly costly, undertaking.
3. In re Estrada
Alternatively, defendant argues that "[a]mended [Penal Code] section 4019 is simply a punishment-lessening statute" that must be applied retroactively under In re Estrada, supra, 63 Cal.2d 740. In Estrada, the Supreme Court considered an amendatory act reducing both the term of imprisonment for a particular crime and the minimum prison time necessary for parole eligibility. (Id. at p. 744.) The defendant in that case committed the crime before the new law was enacted but he was tried, convicted, and sentenced after the new law was in effect. (Ibid.) The court concluded that "where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." (Id. at p. 748.) It stated: "The key date is the date of final judgment. If the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then, in our opinion, it, and not the old statute in effect when the prohibited act was committed, applies." (Id. at p. 744.) This conclusion was predicated upon the intent of the Legislature, which the court found implicit.
A "saving clause" is generally defined as a "statutory provision exempting from coverage something that would otherwise be included" and is "generally used in a repealing act to preserve rights and claims that would otherwise be lost." (Black's Law Dictionary (9th ed. 2009) p. 1461.) The rule at common law was that the "outright repeal of a criminal statute without a saving clause bars prosecution for violations of the statute committed before the repeal." (Sekt v. Justice's Court of San Rafael Tp. (1945) 26 Cal.2d 297, 304.) This rule was "based on presumed legislative intent, it being presumed that the repeal was intended as an implied legislative pardon for past acts." (Ibid.) California has a general statutory savings clause for criminal prosecutions of offenses under criminal law that has been repealed: "The termination or suspension (by whatsoever means effected) of any law creating a criminal offense does not constitute a bar to the indictment or information and punishment of an act already committed in violation of the law so terminated or suspended, unless the intention to bar such indictment or information and punishment is expressly declared by an applicable provision of law." (Gov. Code, § 9608.)
A judgment is not final for the purpose of retroactive application of an amendment to a criminal statute lessening punishment until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed. (People v. Vieira (2005) 35 Cal.4th 264, 306.)
The court in Estrada reasoned: "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final. This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology." (63 Cal.2d at p. 745.)
In People v. Hunter (1977) 68 Cal.App.3d 389, another case cited by defendant, Hunter was placed on felony probation conditioned upon serving one year in county jail. (Id. at p. 390.) In 1976, after probation had been granted, former Penal Code section 2900.5 was amended so that actual days of presentence custody were credited against the jail time imposed as a condition of probation as well as against a prison sentence. (Stats. 1976, ch. 1045, § 2, pp. 4665-4666.) After that amendment became effective, the defendant unsuccessfully sought credit for his time in presentence custody (85 days) against the one-year period in the trial court. (Id. at p. 390.) The appellate court reached the issue of retroactivity even though the one year period was going to expire before its opinion became final. (Id. at p. 391.)
The appellate court in Hunter concluded that "the statutory history of the amendment to [former Penal Code] section 2900.5 and the rule of construction of sentencing statutes declared by our Supreme Court in In re Estrada (1965) 63 Cal.2d 740... require that the 1976 amendment to [former Penal Code] section 2900.5 be construed as effective to sentences imposed prior to the effective date by judgments not yet final on January 1, 1977." (People v. Hunter, supra, 68 Cal.App.3d at p. 391.) The court noted that the Legislature had not included any "prospective limitation" and found that significant in light of the legislative history showing an awareness of In re Kapperman (1974) 11 Cal.3d 542, which had recently invalidated former Penal Code section 2900.5's provision making presentence custody credits available only prospectively. (Id. at p. 392.)
Kapperman struck down, as a violation of equal protection, the provision making credit for actual days in presentence custody available only to those prisoners delivered into prison custody on or after the effective date of former Penal Code section 2900.5 (Stats. 1971, ch. 1732, § 2, p. 3686) and is discussed more fully at pages 65-66, post.
Hunter involved credit for actual days of presentence custody and, therefore, is readily distinguishable from this case. The purpose of credit for actual time already served in presentence custody is completely different than the objective of conduct credit provisions to induce good behavior and willingness to work (see People v. Thomas (1999) 21 Cal.4th 1122, 1124). (See People v. Pottorff (1996) 47 Cal.App.4th 1709, 1718-1719.)
In People v. Doganiere (1978) 86 Cal.App.3d 237, also cited by defendant, the issue was whether another amendment to former Penal Code section 2900.5 applied to Doganiere who had served time in county jail as a condition of probation and later was sentenced to state prison following revocation of probation. The trial court had given him "credit for the time actually spent in custody under his prior probation order." (Id. at p. 238.) For the first time on appeal, he sought to have the credit for the good time/work time, which he had already earned under former Penal Code section 4019 and for which he had received credit against his county jail time, applied against his prison sentence under the 1978 amendment to former Penal Code section 2900.5. (Id. at pp. 238-239.) Former Penal Code section 2900.5 was amended in 1978 as an urgency measure to provide credit for "all days of custody of the defendant, including days served as a condition of probation..., and including days credited to the period of confinement pursuant to Section 4019" (Stats. 1978, ch. 304, §§ 1, 2, pp. 632-633, eff. June 28, 1978). Since its enactment in 1976, Penal Code section 4019 had provided for work time and good time credit to be given to an inmate confined or committed to county jail as a condition of probation. (Stats. 1976, ch. 286, § 4, p. 595.)
The appellate court in Doganiere recognized that Estrada had been followed in Hunter. (People v. Doganiere, supra, 86 Cal.App.3d at p. 239.) The court reasoned: "It would appear to be fair, just and reasonable to give prisoner A, who has been a model prisoner and by reason thereof served only five months of his six-month sentence, credit for the full six months if we are going to give credit for the full six months to prisoner B, who is recalcitrant, hard-nosed, and spent his entire term violating the rules of the local county jail. Thus, the Legislature has said that not only will we give you credit for time served, we will give you credit for the time you would have served if you had not behaved yourself. Under Estrada, it must be presumed that the Legislature thought the prior system of not allowing credit [against a state prison sentence] for good behavior [already earned in county jail] was too severe." (Id. at pp. 239-240.) The court held that "the 1978 amendment to Penal Code section 2900.5 should be applied retroactively as to all nonfinal judgments." (Id. at p. 240.)
The situation in Doganiere is not similar to the situation in this case. Defendant Doganiere had actually already earned the conduct credit under former Penal Code section 4019. In the absence of any other express statement of legislative intent, it was reasonable to find an implicit legislative intent to give a defendant ultimately sentenced to state prison the benefit of conduct credit he had already earned while serving time in county jail as a condition of probation. In contrast, defendant in this case seeks the boon of amended Penal Code section 4019's conduct credit provisions that were not in effect while he was in presentence custody. Moreover, in this case, the amendments at issue were prompted by an express legislative intent different from the intent inferred in Estrada, Hunter, or Doganiere.
In Estrada, the Supreme Court characterized the issue of retroactivity as one of legislative intent and made clear that "[h]ad the Legislature expressly stated which statute should apply, its determination, either way, would have been legal and constitutional." (63 Cal.2d at p. 744.) The court stated that "if the saving clause expressly provided that the old law should continue to operate as to past acts, so far as punishment is concerned that would be the end of the matter." (Id. at p. 747.) The Supreme Court subsequently emphasized in another case that "[t]he Legislature properly may specify that [statutes lessening the punishment for a particular offense] are prospective only, to assure that penal laws will maintain their desired deterrent effect by carrying out the original prescribed punishment as written. [Citation.]" (In re Kapperman, supra, 11 Cal.3d at p. 546.)
Years after Estrada, the California Supreme Court confirmed in a case involving application of an initiative measure limiting tort liability for noneconomic damages: "California continues to adhere to the time-honored principle, codified by the Legislature..., that in the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application. The language in Estrada [and other cases] should not be interpreted as modifying this well-established, legislatively-mandated principle." (Evangelatos v. Superior Court, supra, 44 Cal.3d at pp. 1208-1209.)
The Supreme Court has stated that generally "a statute's retroactivity is, in the first instance, a policy determination for the Legislature and one to which courts defer absent 'some constitutional objection' to retroactivity. (Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 244....)" (Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 841.) It is well established that "[t]he fundamental rule of statutory construction is that the court should ascertain the intent to the Legislature so as to effectuate the purpose of the law. [Citations.]" (Select Base Materials, Inc. v. Board of Equalization (1959) 51 Cal.2d 640, 645.)
This case is certainly distinguishable from Estrada. First, because amended Penal Code section 4019 does not reduce the specific penalty for a particular crime, it may not be inferred that the Legislature acted with the implicit intent to reduce the criminal punishment for a certain offense. Second, in this case, unlike Estrada, we have concrete evidence of the legislative intent underlying the statute and that is not a general intent to lessen punishment of convicts for penological reasons.
Appellant acknowledges that the primary intent of the legislation was to lessen the state's fiscal burden. Section 62 of the statute states: "This act addresses the fiscal emergency declared by the Governor by proclamation on December 19, 2008, pursuant to subdivision (f) of Section 10 of Article IV of the California Constitution." (Stats.2009-2010, 3rd Ex.Sess., ch. 28, § 62, p. 4432.) The legislative committee analyses are devoid of any indication that the Legislature intended retroactive application of the statutory changes to Penal Code section 4019 and confirm the budgetary purposes of the bill. (See Sen. Rules Com., Office of Sen. Floor Analyses, Sen. Bill. No. 18 (2009-2010, 3rd Ex.Sess.) as introduced ["This bill expresses the intent of the Legislature to enact statutory changes relating to the Budget Act of 2008"]; Sen. Rules Com., Office of Sen. Floor Analyses, Sen. Bill. No. 18 (2009-2010, 3rd Ex.Sess.) as amended Aug. 31, 2009, p. 1 [Assembly amendments deleted prior statement of intent and the bill "now makes changes related to public safety necessary to implement the Budget Revisions of the 2009 Budget"].)
Obviously, by increasing the amount of credits available to certain inmates, qualifying inmates' terms will be shortened and prison populations reduced, resulting in reduced costs to the state. But retroactive application of Penal Code section 4019, as amended January 25, 2010, would fly in the face of Legislature's express intent that prisoners earn statutorily authorized custody credits and would have no effect upon prisoners' past conduct in presentence custody. Prospective application of Penal Code section 4019, on the other hand, comports with the purpose of conduct credits and continues to reduce the state's prison expenses going forward.
In sum, the legislative history and purpose of Penal Code section 4019 as amended are most consistent with its prospective application. We do not find any implicit legislative intent to decrease punishment for penological reasons as found in Estrada.
4. Equal Protection
While this court is aware of the principle of statutory construction that requires a statute to be construed to avoid constitutional infirmity if possible (see People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 509; People v. Davis (1968) 68 Cal.2d 481, 483-484), we discern no equal protection problem created by a purely prospective application. Estrada's retroactivity rule is not constitutionally compelled. (People v. Floyd (2003) 31 Cal.4th 179, 189.) Neither In re Kapperman, supra, 11 Cal.3d 542 nor People v. Sage (1980) 26 Cal.3d 498 compel retroactive application of section 4019 as a matter of equal protection in this case.
In re Kapperman, supra, 11 Cal.3d 542 concerned former section 2900.5, which, as enacted in 1971, provided for presentence custody credit against a prison sentence for "all days of custody" in jail. (Stats.1971, ch. 1732, § 2, p. 3686.) "The statute's purpose was 'to eliminate the unequal treatment suffered by indigent defendants who, because of their inability to post bail, served a longer overall confinement than their wealthier counterparts. [Citations.]' (In re Rojas (1979) 23 Cal.3d 152, 156..., italics added.) Thus, the Legislature enacted section 2900.5 to address pretrial 'incarceration' (In re Watson (1977) 19 Cal.3d 646, 651...), and to 'reflect the basic philosophy that when a person is incarcerated he is being punished by the reality of incarceration.' (People v. Williams (1975) 53 Cal.App.3d 720, 723..., italics added.) The statute embodied a 'policy decision... that for purposes of credit, precommitment detention should be equated with post-commitment imprisonment.' (In re Kapperman (1974) 11 Cal.3d 542, 547..., italics added.)" (People v. Pottorff, supra, 47 Cal.App.4th at pp. 1718-1719.)
The California Supreme Court in Kapperman considered the constitutionality of subdivision (c) of former Penal Code section 2900.5 (Stats.1971, ch. 1732, § 2, p. 3686), which in effect made "the credit prospective only, [by] limiting the application of the section to those persons who are delivered into the custody of the Director of Corrections on or after March 4, 1972, the effective date of the section." (In re Kapperman, supra, 11 Cal.3d at pp. 544-545.) The Supreme Court began by pointing out that the case was not governed by Estrada because "[t]he Legislature properly may specify that [statutes lessening punishment for a particular offense] are prospective only, to assure that penal laws will maintain their desired deterrent effect by carrying out the original prescribed punishment as written. [Citation.]" (Id. at p. 546.) The court concluded that the provision limiting its application to those in prison custody on or after its effective date of March 4, 1972 violated the "California Constitution and the equal protection clause of the Fourteenth Amendment in that it constitutes a legislative classification which is not reasonably related to a legitimate public purpose." (Id. at p. 545.) The court stated: "[Penal Code] [s]ection 2900.5 does not purport to award credit on the basis of whether a prisoner was incarcerated in a county jail as distinguished from a state prison; rather, credit is granted or withheld solely on the basis of the date on which a person was delivered into the custody of the Director of Corrections." (Id. at p. 548.)
The California Supreme Court could conceive of no legitimate public purpose served by excluding all prisoners received into state prison before March 4, 1972 from the benefits of former Penal Code section 2900.5. (Id. at pp. 547-550.) The court "extend[ed] the statutory benefits [of credit for presentence custody] retroactively to those whom the Legislature improperly excluded." (Id. at p. 545.)
In People v. Sage, supra, 26 Cal.3d 498, the defendant was not entitled to presentence conduct credit under former Penal Code section 4019 because that earlier statute did not authorize conduct credit for precommitment jail time for felons, only for misdemeanants. (Id. at pp. 502-504.) The Supreme Court concluded there was no rational basis for "denying presentence conduct credit to detainee/felons." (Id. at p. 508, fn. omitted.) The court held that the "discrepancy in the presentence jail treatment of misdemeanants and felons violated equal protection. ([People v. Sage, supra, 26 Cal.3d] at pp. 506-509....)" (People v. Buckhalter (2001) 26 Cal.4th 20, 36.) The court made its holding retroactive to remedy that arbitrary treatment under the statute. (See People v. Sage, supra, 26 Cal.3d at p. 509, fn. 7.)
Unlike former section 2900.5 at issue in Kapperman or former Penal Code section 4019 at issue in Sage, the newest version of Penal Code section 4019 does not provide for unequal treatment of similarly situated persons. No equal protection problem arises from its prospective application. (See People v. Floyd, supra, 31 Cal.4th at pp. 188-191 [no equal protection problem with prospective application of Proposition 36, which generally provided for probation rather than prison for defendants convicted of nonviolent drug possession]; see also Plyler v. Doe (1982) 457 U.S. 202, 248 [102 S.Ct. 2382] ["The Equal Protection Clause guarantees similar treatment of similarly situated persons"]; id. at p. 216 [but U.S. Constitution does not require things which are different in fact be treated in law as though they were the same]; In re Eric J. (1979) 25 Cal.3d 522, 530 ["The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner"]; Williams v. Walsh (1912) 222 U.S. 415, 420-421 [32 S.Ct. 137] [U.S. Supreme Court rejected equal protection challenge to new criminal law, stating " 'the 14th Amendment does not forbid statutes and statutory changes to have a beginning, and thus discriminate between the rights of an earlier and later time' "]; cf. Dobbert v. Florida (1977) 432 U.S. 282, 301 [97 S.Ct. 2290] [U.S. Supreme Court rejected equal protection claim of defendant sentenced to death under new statute in effect at time of trial because he was not similarly situated to defendants whose death sentences were commuted when predecessor statute was ruled unconstitutional].) Moreover, we can conceive of a legitimate public purpose served by excluding prisoners from the benefits of the newly amended Penal Code section 4019 with respect to their presentence conduct occurring while former Penal Code section 4019 was in effect. Retroactive application has no effect on past behavior and prospective application is consistent with the motivational objective of statutorily authorized presentence custody credits. (Cf. In re Stinnette (1979) 94 Cal.App.3d 800, 806.)
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.