Opinion
G056450
03-23-2020
THE PEOPLE, Plaintiff and Respondent, v. ADAM ANTHONY INGALA-WHITING, Defendant and Appellant.
Diane E. Berley for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine Gutierrez and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14HF1464) OPINION Appeal from a judgment of the Superior Court of Orange County, Sheila F. Hanson, Judge. Affirmed. Diane E. Berley for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine Gutierrez and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Adam Anthony Ingala-Whiting (defendant) killed F.B. by stabbing him 14 times. At trial, defendant was convicted of second degree murder and sentenced to 15 years to life plus one year in state prison.
Defendant argues the prosecutor committed misconduct during cross-examination by asking inflammatory questions, and during closing argument by misstating the law, testifying to facts not in evidence, and improper vouching. He also argues the trial court abused its discretion by denying his motion for juror identifying information. We disagree and affirm the judgment.
FACTS
Defendant responded to a Craigslist ad posted by F.B. In the ad, F.B. represented himself as a couple named "Jeannie" and "Joey" looking for a partner for a threesome. F.B. communicated with defendant as Jeannie and said he wanted to have sex with defendant. Defendant agreed to come over with the understanding he would first meet and have sex with Joey dressed as a female, and then Jeannie would join them.
Defendant testified he arrived and met F.B. dressed as a woman. He said he and F.B. spoke for about an hour before F.B. received a text from Jeannie saying she would not be able to make it. Defendant said he planned on leaving at that point, but F.B. jumped on him.
Defendant said F.B. pinned his arms and he could not push F.B. off of him. Worried F.B. was going to rape him, defendant reached into his pocket and pulled out a knife. Defendant began stabbing F.B. in the back. F.B. leaned back and defendant stabbed him in the chest and neck.
DISCUSSION
1. Alleged Prosecutorial Misconduct During Cross-Examination
Defendant argues the prosecutor committed misconduct by engaging in abusive and inflammatory cross-examination of defendant in the following exchange:
"[Prosecutor:] Let's talk about the stabbing. I want you to describe - You did this. I want you to describe each and every stab wound. Not a blur. I want to know what you did. We want to hear what you did, and what it felt like.
"[Defendant:] It didn't feel good.
"[Prosecutor:] What did it feel like? You took a knife and plunged it into a man's flesh. What did that feel like and how did he react? [¶] . . . [¶] . . . I'm asking, what did it feel like in your hand a knife plunging into someone's flesh?"
Defendant contends these questions did not seek relevant, admissible testimony, and could only serve the purpose of inflaming the jury by implying the defendant "enjoyed the feeling of sticking a knife into [F.B.'s] body." We are not persuaded.
"An argumentative question is a speech to the jury masquerading as a question. The questioner is not seeking . . . relevant testimony. Often it is apparent that the questioner does not even expect an answer. . . . An argumentative question that essentially talks past the witness, and makes an argument to the jury, is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all." (People v. Chatman (2006) 38 Cal.4th 344, 384.)
But the challenged questions here sought relevant information about defendant's mental state throughout the stabbing which was necessary to determine whether defendant was guilty of the charged crimes. For example, the jury needed to determine if defendant was trying to kill F.B. when he was stabbing him, and if he considered the consequences of his actions before he completed the stabbing. In addition, because defendant said he committed the stabbing in self-defense, the jury needed to decide if defendant was truly in fear for his life while he committed the stabbing. Finally, the challenged questions did not imply anything about how defendant felt when he stabbed F.B., and offered him the opportunity to say that he did not enjoy it.
In sum, the challenged questions do not constitute misconduct. 2. Alleged Prosecutorial Misconduct During Closing Argument
Defendant argues the prosecutor committed misconduct during closing argument by (1) misstating the law of intent for second degree murder, (2) improperly "testifying" to blood spatter evidence, and (3) improperly vouching that defendant is a liar. We disagree.
In evaluating a claim of prosecutorial error during closing argument, we must first determine whether any error 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"' [citation], and that the prosecutor 'may "vigorously argue his case" . . . "[using] appropriate epithets warranted by the evidence."'" (People v. Welch (1999) 20 Cal.4th 701, 752-753.)
A. Misstating the Law
Defendant argues the prosecutor misstated the law of second degree murder by arguing: "[A]n intent to kill is not required for second degree murder. So if for some reason you think the defendant did not intend to kill the victim when he stabbed him 14 times and slashed his neck, then he'd be guilty of second degree murder. [¶] Mental state for first degree murder, and we'll talk about this. There's the instruction number which you have. You have to have an intent to kill. If there's no intent to kill, the fallback is second degree murder[.]" Defendant argues the prosecutor "failed to differentiate the nuanced difference between express and implied malice." "As a result, the jury was misinformed that it could find [defendant] guilty of second degree murder based on express malice without a finding of intent[.]" Not so.
Before making the statement challenged by defendant, the prosecutor explained the legal definitions of both express and implied malice. He then specified "[s]econd degree murder requires either an intent to kill or conscious disregard of human life." (Italics added.) He continued, "let's talk about implied malice." "Obviously we have this here. Knew the act was dangerous and acted with conscious disregard for human life." (Italics added.) He then provided examples of second degree murder with implied malice and ended with the quote highlighted by defendant. Thus, the prosecutor did not misstate the law or argue in an improper way.
B. Testifying as an Expert
Defendant asserts the prosecutor improperly "testified" as a blood spatter expert during his closing argument. Again we are not persuaded.
As an initial matter, defendant fails to cite any specific instance of this misconduct in the record, but generally contends the prosecutor "repeatedly argued facts to the jury that were without foundation" and "argued his own analysis" of the blood evidence. "It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations. [Citations.] Briefs which do not meet this requirement may be stricken. [Citation.]" (Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205.) We could reject this claim on this ground alone.
On the merits, our review of the record reveals the prosecutor did not improperly discuss the blood spatter evidence during his closing argument. He merely summarized the testimony of the witnesses and discussed how the blood spatter evidence did not correspond with the defendant's description of the incident. All of this falls squarely within the broad discretion afforded the prosecution during closing argument.
C. Vouching
Defendant argues the prosecutor improperly vouched when arguing: "to find there was any evidence of an attempted rape or that [defendant] even believed for imperfect self-defense that he was about to be raped, you have to believe the killer who was a proven liar. [¶] And you know what? I didn't get into this business to call people liars. I don't like it. But it's true. You have to believe the killer and a liar. Took his life, now calls him a rapist." This was not misconduct.
"Referring to the testimony and out-of-court statements of a defendant as lies is an acceptable practice so long as the prosecutor argues inferences based on evidence rather than the prosecutor's personal belief resulting from personal experience or from evidence outside the record." (People v. Edelbacher (1989) 47 Cal.3d 983, 1030.)
In the instant case, there was ample evidence defendant lied. On cross-examination defendant admitted telling numerous lies to his family and the police in the hopes of not getting arrested for stabbing F.B. Defendant also admitted he told "about 65 lies" to the police when they interviewed him. The prosecutor referenced these admitted lies numerous times in his closing argument before the comment highlighted by defendant. Within this context, the prosecutor's argument that defendant was a liar was fair comment on the evidence and there was no reason that the jury would interpret the argument to be based on something outside the record.
In sum, there was no misconduct during the prosecutor's closing argument. 3. Petition for Juror Identifying Information
Because we have concluded there was no prosecutorial misconduct, we need not address the Attorney General's argument defendant forfeited these claims by failing to make timely objections, or defendant's claim the issues should still be considered on the merits based upon due process or ineffective assistance of counsel. --------
Defendant argues the court abused its discretion in denying the petition for juror information. We disagree.
A. Background
A month after the verdict, defendant petitioned the court to disclose juror identifying information. The petition included declarations by defendant and his sister stating, they saw two jurors in the hallway "waiting for deliberations to convene" in the morning. The jurors were speaking to each other and at one point "the volume of the conversation eventually dropped to a whisper" and one juror said "the law is the law . . . no excuses . . . the others just need to. . . ."
The court denied the petition and explained, "It is hard to believe that [defendant] and his sister . . . who is, in fact - or at least what has been relayed to me throughout this trial - a licensed lawyer in the state of Louisiana - while she was not pro hac vice counsel of record in this case, both counsel informed the court prior to the beginning of this trial that she was assisting the defense. [¶] . . . [¶] If, in fact, they heard an observation from jurors who had concerns, the fact that they did not bring it to the court's attention, or even to you and [defense counsel's] attention as you have indicated, along with the fact that I have had the opportunity to observe the testimony of the defendant, leads the court to question the credibility of those declarations[.]" The court found the declarations did not establish good cause because "[t]here is absolutely no evidence that there was actually any discussing of the facts of this case amongst jurors outside of the deliberation room. There is no evidence that jurors were engaged in any of the aspects that one would consider deliberations, such as the weighing of the evidence, or in any way considering reasons for or against any particular verdict."
B. Discussion
Code of Civil Procedure sections 206 and 237 govern the procedure for the release of juror identifying information. Section 206, subdivision (g) allows for a defendant to "petition the court for access to personal juror identifying information . . . for the purpose of developing a motion for new trial or any other lawful purpose" and requires the court to consider such petitions pursuant to section 237. Section 237 requires the court to set a hearing if the defendant's petition establishes a "prima facie showing of good cause," but the court "shall not set the matter for hearing if there is a showing on the record of facts that establish a compelling interest against disclosure." "Absent a showing of good cause for the release of the information, the public interest in the integrity of the jury system and the jurors' right to privacy outweighs the defendant's interest in disclosure." (People v. McNally (2015) 236 Cal.App.4th 1419, 1430.)
In the instant case, the court's denial of the petition for juror information was neither arbitrary nor absurd. The court was within its discretion to determine the declarations were not credible and to deny the petition on that basis. (See People v. Tuggles (2009) 179 Cal.App.4th 339, 385-388.)
Further, the court's determination the declarations did not provide good cause was reasonable. Defendant cites two cases where courts of appeal held that trial courts abused their discretion by not conducting hearings into potential juror misconduct: People v. Johnson (2013) 222 Cal.App.4th 486 (Johnson) and People v. Hem (2019) 31 Cal.App.5th 218 (Hem). Neither case is analogous to the case at hand.
In Hem, four jurors in a hallway were overheard discussing their deliberations in a murder trial and a recent question that they had submitted to the court. They talked "'about a second . . . how there was one holdout on the second. They mentioned unconscious, they said that they were worried about letting him out so he could kill someone else's kid, but that they could otherwise live with the manslaughter if the answer from the court is yes." (People v. Hem, supra, 31 Cal.App.5th at p. 222.) The jury eventually convicted the defendant of manslaughter. (Id. at p. 225.)
In Johnson, several jurors told the defendant's stepfather the jury had difficulty convicting the defendant, but at least half of the jurors assumed the defendant was guilty because he had not testified during the trial. (People v. Johnson, supra, 222 Cal.App.4th at p. 495.)
In the instant case, the alleged conduct is far removed from Hem and Johnson. Here, two jurors made a brief comment that could not be considered deliberations. Also, their comments did not indicate any misconduct was taking place during the deliberations and there is no reason to believe the comments influenced the verdict in any way.
Therefore, the court did not err by denying the petition.
DISPOSITION
The judgement is affirmed.
THOMPSON, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.