Opinion
E039974
4-25-2007
THE PEOPLE, Plaintiff and Respondent, v. DREXEL QUINCY JACKSON, Defendant and Appellant.
Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Stephanie H. Chow, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
I. INTRODUCTION
Defendant Drexel Quincy Jackson appeals from his conviction of willfully discharging a firearm in a grossly negligent manner that could result in death or injury (Pen. Code, § 246.3) and associated enhancements. He contends: (1) the trial court erred in instructing the jury with CALJIC No. 2.92 that the jury should consider the witnesss level of confidence in his or her identification as a factor in assessing the accuracy of the identification; (2) during closing argument, the prosecutor impermissibly lowered the burden of proof and shifted the burden to defendant; (3) the trial court erred in excluding evidence that the police had shot defendants dog; and (4) there was insufficient evidence that defendants prior conviction was a "strike" offense. We conclude the evidence was insufficient to establish that defendants prior conviction was a strike. We find no other prejudicial errors.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTS AND PROCEDURAL BACKGROUND
About 9:30 a.m. on April 7, 2005, Demontre Alexander was driving on El Cajon Drive past Ironwood Drive in Desert Hot Springs when he saw three Black men standing about 45 feet away in front of 13600 El Cajon. One of the men, defendant, was holding a semiautomatic pistol in his right hand. Defendant appeared to be intoxicated. He was wearing a yellow top and gray sweatpants, which were falling down, and he was staggering while trying to pull up his pants with one hand. The other two men appeared to be talking to him. Alexander had his two-year-old son in the car, and he saw a child about a quarter of a block away walking towards defendants direction. He also saw police cars in the area.
When Alexander drove past, within six or eight feet of defendant, he saw the slide on the top of the gun move back, and a bullet was ejected. He did not see muzzle flash or hear gunfire. One of the men standing near defendant took cover behind some bricks, "got on his fours," and then ran away after reaching a fence. The second man also ran away. Alexander sped up and called 911.
Alexander had experience with weapons in the military, and he recognized defendants weapon as a semiautomatic pistol. He was also familiar with pellet guns, and he was certain the round he saw ejected was not pellets.
Alexander identified defendant at trial as the man who had held the gun. Alexander was "positive" about his identification.
That same morning, Valentine Gonzalez was driving on El Cajon Drive toward Ironwood Drive when he saw a Hispanic man and a Black woman talking in front of the parking lot of an apartment building. A Black man, wearing an orange or yellow long-sleeved sweatshirt, walked quickly through a gate and yelled, "What the hell is going on here?" The Black man raised a handgun with both hands to eye level and fired four or five shots towards the Hispanic man. Gonzalez saw puffs of smoke and saw the gun recoil. Gonzalez, who was about 20 feet away when the shooting began, sped up his car. When he crossed Ironwood Drive, he saw three or four police cars, and he stopped to tell the officers there had been a shooting down the street. Gonzalez was unable to identify anyone from a photographic lineup.
About 9:30 a.m., the same morning, Sergeant Radames Gil and other police officers were responding to a 911 call from an apartment complex a couple blocks away from where Alexander and Gonzalez had seen a shooter. As the officers entered the complex, Sergeant Gil heard a single gunshot from the south. Almost immediately, there was a call reporting shots fired, and dispatch described a Black man wearing a yellow sweatshirt as the shooter.
Sergeant Gil drove south to Ironwood. He did not see a Hispanic man, a Black woman, or any children. Within a minute after hearing a gunshot, Sergeant Gil saw defendant, wearing a long-sleeved yellow sweatshirt and dark pants, step into the street from the driveway at 13600 El Cajon Drive. Defendant was not holding anything in his hands. He kept holding up his pants, which looked as if they were falling down, and he appeared dazed.
Sergeant Gil told defendant to get on the ground, but defendant did not comply until after he was ordered to the ground several times. Defendant smelled of alcohol; his eyes were bloodshot and watery; his speech was slurred; and he was not in balance when he walked. Sergeant Gil thought defendant was inebriated. While taking defendant into custody, Sergeant Gil noticed a nine-millimeter expended shell casing on the edge of the driveway five to eight feet from where defendant was standing. Sergeant Gil did not see any other person in the area when he contacted defendant, but a woman approached after Sergeant Gil had ordered defendant down.
Detective Theron Conley arrived to assist, and he noticed a "non-expended" Winchester nine-millimeter bullet lying in the driveway, and he collected it and the casing Sergeant Gil had earlier spotted in the driveway. Detective Conley searched defendants office and found another Winchester nine-millimeter bullet in defendants desk. The casing and both bullets were the same make, manufacturer, and model.
Officer Johnson used a Taser to get defendant into a police car. Sergeant Gil asked defendant where the gun was, and defendant initially denied having a gun. He eventually said he had fired a pellet rifle. Defendant said the pellet rifle was in his apartment, next to the couch and the door. Sergeant Gil retrieved the pellet rifle from that location. Defendants daughter, Ty Jackson, testified that defendant also owned a pellet pistol.
The officers searched the area, including defendants apartment and his office in the garage, but they did not find a firearm. They did not search the apartment of defendants daughter or a trailer that was behind the apartment complex.
A gunshot residue test, administered at 12:35 p.m. on April 7, was negative, which a police criminalist interpreted as an inconclusive finding.
A Crossman pellet gun such as that recovered from defendant resembles a real gun, but its sound is markedly different from and considerably quieter than that of a nine-millimeter gun. There is no reason to slide the top of a pellet gun, and there is no smoke when a pellet gun is fired.
Ty Jackson testified she lived in Apartment A, the front apartment, at 13600 El Cajon Drive, and defendant and his wife lived in Apartment C. At 9:20 to 9:30 a.m. on April 7, Ty heard a commotion in front of the garage area and went to check. She heard several voices in defendants office, but she did not hear any gunshots. She saw police officers with guns drawn, and she heard, "Shooter." She saw defendant "sprawled out in the middle of the street," and she asked several officers what was going on, but no one responded to her. Her key chain chirped to let her know that her car alarm was being turned off, and she saw a police officer looking in the trunk of her car. The passenger door was open. She had not given permission for her car to be searched. She gave the officers permission to search her apartment, but they did not do so.
The jury found defendant guilty of a violation of section 246.3. The court found true that the crime was a serious felony under sections 667 and 1192.7, subdivision (c)(8), and further found the prior strike enhancement true.
The trial court imposed the low term of 16 months for the section 246.3 violation and doubled that term for the prior strike.
III. DISCUSSION
A. CALJIC No. 2.92
Defendant contends the trial court erred in instructing the jury with CALJIC No. 2.92 that the jury should consider the witnesss level of confidence in his or her identification as a factor in assessing the accuracy of the identification.
1. Factual Background
The trial court instructed the jury with CALJIC No. 2.92 as follows: "In determining the weight to be given eyewitness identification testimony, you should consider the believability of the eyewitness as well as other factors which bear upon the accuracy of the witness identification of the defendant, including, but not limited to, any of the following: [¶] . . . .[¶] The extent to which the witness is either certain or uncertain of the identification . . . ." Defense counsel did not object to the instruction as given.
2. Forfeiture
Citing People v. Arredondo (1975) 52 Cal.App.3d 973, 978 (Arredondo), the People argue that defendant has forfeited any challenge to the use of CALJIC No. 2.92 because he failed to object to the instruction at trial. Defendant concedes he did not object to CALJIC No. 2.92 in the trial court, but argues that the issue may be addressed under section 1259, which allows appellate review of "any instruction given even though no objection was made in the lower court if the substantial rights of the defendant are affected." (Arredondo, supra, 52 Cal.App.3d at p. 978.) We will therefore address the issue on the merits.
3. Analysis
Defendant contends the certainty factor in CALJIC No. 2.92 is erroneous because scientific experts dispute the implicit proposition in the instruction that eyewitness certainty correlates with the accuracy of the identification. In People v. Wright (1988) 45 Cal.3d 1126, 1144 (Wright), however, the Supreme Court held that the "certainty" portion of CALJIC No. 2.92 "should be given when requested in a case in which identification is a crucial issue and there is no substantial corroborative evidence. [Citation.]" In People v. Johnson (1992) 3 Cal.4th 1183, 1232 (Johnson), the Supreme Court approved CALJIC No. 2.92 and specifically rejected a challenge to the "certainty" portion of the instruction. Moreover, the court in Johnson found no error even though the defense had presented uncontradicted expert testimony that a witnesss confidence in an identification does not positively correlate with the accuracy of the identification. (Johnson, supra, 3 Cal.4th at pp. 1230-1231.)
Although defendant argues that the certainty factor is unsupported by scientific opinion, the Supreme Court was certainly aware of existing scientific opinion about eyewitness identification when it approved of CALJIC No. 2.92 in Wright, supra, 45 Cal.3d 1126, and Johnson, supra, 3 Cal.4th 1183. (See People v. McDonald (1984) 37 Cal.3d 351, 369 (McDonald), overruled on another ground by People v. Mendoza (2000) 23 Cal.4th 896, 914.) In McDonald, the court recognized that "the majority of recent studies have found no statistically significant correlation between confidence and accuracy . . . . [Citation.]" (McDonald, supra, at p. 369.) And in Wright, the majority rejected Justice Mosks contention in dissent that the certainty factor was erroneous due to the scientific opinion. (Wright, supra, at p. 1159 (dis. opn. of Mosk, J.).)
More recently, the Supreme Court has approved the use of the certainty factor in a related context — in People v. Arias (1996) 13 Cal.4th 92, 168, the court held that among the factors the trial court should consider in determining whether an identification was unduly suggestive include "the level of certainty displayed by the witness at a suggestive confrontation." (See also People v. Clark (1992) 3 Cal.4th 41, 135 [same].)
We conclude that under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, we are bound by the Supreme Courts pronouncements on the issue in Wright, supra, 45 Cal.3d 1126, and Johnson, supra, 3 Cal.4th 1183. (See People v. Gaglione (1994) 26 Cal.App.4th 1291, 1302-1303 [rejecting a challenge to the certainty factor based on Supreme Court precedent in Wright and Johnson], disapproved on other grounds in People v. Martinez (1995) 11 Cal.4th 434, 452.) Thus, we find no error in the trial court giving CALJIC No. 2.92.
B. Prosecutors Argument Concerning Burden of Proof Defendant contends the prosecutors argument to the jury impermissibly lowered the burden of proof and shifted the burden to defendant.
1. Factual Background
During rebuttal argument, the prosecutor stated:
"Something else: The defense can call logical witnesses. There were at least two people standing out with the defendant that day, werent there? We have both Mr. Alexander and Mr. Gonzalez saying: Yeah, there were a couple people out there. Might have been more, because were not sure if theyre the same two, depending on the time.
"Gosh, if the defendant was out there doing something other than shooting a 9-millimeter handgun, dont you think those two people hanging out with the defendant would have come in and testified on his behalf?"
Defense counsel objected that "[b]urden is shifting," but the trial court overruled the objection. The prosecutor continued, "They didnt come in. They didnt come in. They can call logical witnesses. You saw him call his daughter."
Defense counsel again objected that the argument was "impermissible. Burden is shifting," but the trial court again overruled the objection. The prosecutor stated, "He didnt call these people in. Why didnt he?" Defense counsel stated, "Same objection to this line, if it could be noted, please."
Later, the prosecutor stated: "Reasonable doubt: Beyond a reasonable doubt is not beyond all possible doubt. Okay. Thats part of the jury instruction. What it means essentially is that guilt is reasonable and innocence is unreasonable. Is guilt reasonable here?" Defense counsel objected that the argument misstated the law, but the trial court overruled the objection. The prosecutor then argued, "The judge — 2.90 is reasonable doubt if you want to check it — but let me ask you: Is guilt reasonable here? Yes. The only reasonable — the only reasonable conclusion to all the facts and testimony and evidence . . . is that this man stepped outside his house that day, stood in his front yard, his front driveway, raised a gun and shot it in a residential neighborhood."
2. Forfeiture
The People argue that defendant forfeited any claim of prosecutorial misconduct by failing to make proper objections and requests for admonition to the jury. To the contrary, as set forth above, the record shows that defense counsel repeatedly objected to the prosecutors argument on the same bases now urged on appeal, and the trial court repeatedly overruled defendants objections. And once the trial court overruled those objections, defendant was not required to request a curative instruction. (People v. Panah (2005) 35 Cal.4th 395, 462 ["Forfeiture [of a claim of prosecutorial misconduct] for failure to request an admonition will . . . not apply where the trial court immediately overruled the objection to the alleged misconduct, leaving defendant without an opportunity to request an admonition"].) Defendant has manifestly not forfeited his claim of error.
3. Analysis
Prosecutorial misconduct is reversible error under the federal Constitution "when it infects the trial with such unfairness as to make the conviction a denial of due process." (People v. Morales (2001) 25 Cal.4th 34, 44.) A prosecutors conduct that does not make the trial fundamentally unfair is misconduct under California law if it involves the use of deceptive or reprehensible methods to attempt to persuade the trier of fact. (Ibid.) To establish prosecutorial misconduct, a defendant need not show that the prosecutor acted in bad faith, but the defendant must show that the right to a fair trial was prejudiced. (People v. Nguyen (1995) 40 Cal.App.4th 28, 35.)
"To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citation.]" (People v. Frye (1998) 18 Cal.4th 894, 970.) The reviewing court does not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutors statements. (Ibid.; see also People v. Morales, supra, 25 Cal.4th at p. 44.)
a. Comments on failure to produce witnesses
Defendant argues that it was misconduct for the prosecutor to comment on defendants failure to call as witnesses any of the other people observed in the area — Alexander testified two other Black men were talking to defendant, and Gonzalez testified defendant confronted a Black woman and a Hispanic man.
In People v. Bradford (1997) 15 Cal.4th 1229 (Bradford), the defendant challenged the prosecutors arguments that (1) "`there [was] no evidence to the contrary," in reference to the proposition that the victims had been killed for pleasure; (2) "`no evidence has been introduced by [the defense]" on the issue whether a stain found on a mat in defendants trunk was blood; (3) the defendant "`certainly [was] free to call his own witness[es]" to testify contrary to the coroners conclusions; and (4) the defendant had not presented alibi witnesses or other evidence to establish his whereabouts when the victim was killed. (Id. at pp. 1338-1339.) The court held that these statements did not constitute error under Griffin v. California (1965) 380 U.S. 609, and did not "impermissibly shift the burden of proof to defendant." (Bradford, supra, at pp. 1339-1340.) The court explained, "A distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence." (Id. at p. 1340.) In our view, the statements concerning defendants failure to call witnesses on his behalf fall squarely within the holding in Bradford.
b. Comments on reasonable doubt
Defendant further argues that the prosecutors remark that reasonable doubt means that guilt is reasonable and innocence is unreasonable was a misstatement of the law and therefore misconduct. In People v. Hill (1998) 17 Cal.4th 800, 831, the defendant challenged the prosecutors statement during argument that "`There has to be some evidence on which to base a doubt." (Italics omitted.) The court concluded that the prosecutor committed misconduct because it was reasonably likely the jury understood the prosecutors statement to mean that the defendant had the burden of producing evidence to demonstrate a reasonable doubt of his guilt. (Id. at p. 832.)
However, the prosecutors statements in closing argument must be viewed in context with the remainder of summation. (People v. Medina (1995) 11 Cal.4th 694, 756.) Here, the prosecutor repeatedly clarified that she had the burden of proving defendants guilt of all the elements of the charge. Defense counsel also repeatedly emphasized that the prosecutor had the burden of proof. The prosecutor further emphasized that the jury was required to "follow the law as the judge gives it to you," not to take the attorneys interpretations of the law. The trial court instructed the jury it was required to follow the law as the court stated it, not as the attorneys argued it.
A prosecutors misstatement of the reasonable doubt standard is harmless error when the trial court instructs the jury with a proper reasonable doubt instruction because the jury is presumed to have understood and followed the trial courts instructions. (People v. Morales, supra, 25 Cal.4th at p. 47; People v. Nguyen, supra, 40 Cal.App.4th at pp. 36-37.) Here, as noted, the trial court instructed the jury that it must apply the law as stated in the instructions, and those instructions would control if the attorneys made any contrary statements. The trial court correctly instructed the jury concerning the reasonable doubt standard and the prosecutors burden of proof. We assume the jury followed the instructions given, and we therefore conclude it was not reasonably probable the jury was misled by the prosecutors statements, even if those statements were erroneous.
C. Exclusion of Evidence That Police Shot Defendants Dog
Defendant contends the trial court erred in excluding evidence that the police had shot defendants dog because the evidence relating to the police shooting provided a motive for police conduct and explained both the report of gunfire and the presence of the bullet casing found near defendants home.
1. Factual Background
The People moved before trial for an order excluding evidence that police officers, in connection with the incident resulting in defendants arrest, had shot a dog or dogs at defendants home. At the hearing on the motion to exclude evidence, Sergeant Gil testified that after defendant was detained, police officers began searching the area for a gun. Sergeant Gil heard a shot from the rear of the building and then saw a dog run from that area. He heard more shots fired and saw the dog run across the front of defendants property, continue east, and run behind a building with one or two officers in pursuit. Before the dog ran through the area, when defendant was already in custody in the back of a police unit, Sergeant Gil had seen a nine-millimeter casing on the ground and secured it. The dog incident happened after the officers had started searching for a gun. Sergeant Gil testified that the police officers on the scene carried 40-millimeter and 10-millimeter guns. He later conceded it was possible that one of the officers carried a nine-millimeter gun that day, but no officer had fired a nine-millimeter gun. The trial court refused to allow defense counsel to reopen to determine if the casing was collected rather than merely being spotted and secured before the incident with the dog. The trial court granted the motion to exclude the evidence "unless something new comes up during the course of the trial."
2. Standard of Review
Under Evidence Code section 352, the trial court enjoys broad discretion to admit or exclude evidence, and its exercise of that discretion will not be disturbed on appeal unless the trial court exercised its discretion in an arbitrary, capricious, our patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
3. Analysis
Defendant contends the excluded evidence would have supported his defense by providing an alternate explanation for the reports of gunfire and the presence of the shell casing and the bullet at the scene. However, Sergeant Gils testimony at the hearing was undisputed that he had observed the spent casing in the gutter before the incident with the dog occurred and that no officer had shot a nine-millimeter weapon at the scene that day. Thus, the incident would not explain the gunshot Sergeant Gil heard before he arrived at the scene or that presence of the bullet or spent casing.
Defendant also argues that evidence of the dog incident would have created an inference that the officers fabricated the evidence and testimony adduced against him at trial. However, the fact that officers shot at defendants dog while searching the scene does not tend to prove a motive to plant evidence and falsely testify against defendant simply to cover up the fact that they tried to protect themselves from attack by an animal perceived to be dangerous.
In short, defendant has not demonstrated that the proffered evidence was relevant to any disputed issue. The trial court did not abuse its discretion in excluding evidence of the dog incident.
D. Sufficiency of Evidence That Prior Conviction Was a Strike
The trial court imposed the low term of 16 months for defendants current offense. The trial court found the prior strike allegation true and doubled the sentence for the current offense to two years eight months. Defendant contends the evidence was insufficient to establish that his prior offense was a strike.
The trial courts minute order and the abstract of judgment erroneously reflect that defendant received the low term of two years eight months for his conviction of section 246.3 rather than the low term of 16 months, doubled because of his prior strike . As we discuss post, we conclude the finding that defendants prior conviction was a strike must be vacated, so we need not separately order the abstract of judgment corrected.
1. Background
To prove the allegation that defendant had suffered a prior strike, specifically, a violation of section 246.3 on September 14, 1989, the prosecutor asked the trial court to take judicial notice of a complaint charging defendant with two counts of negligent discharging of a firearm with one accompanying allegation that he personally discharged a firearm; a jury verdict finding him guilty of discharging a firearm with gross negligence in violation of section 246.3; the minutes of the jurys verdict; the abstract of judgment; a Department of Motor Vehicles image, and a Riverside County Sheriffs Department printout of defendants criminal record. Based on those documents, the trial court found true that defendant had a prior conviction in Los Angeles County for a violation of section 246.3.
2. Analysis
Section 1192.7, subdivision (c) lists the crimes that constitute serious felonies. The crime of discharging a firearm in a grossly negligent manner under section 246.3 is not specifically listed, and thus, qualifies as a serious felony only if it falls within section 1192.7, subdivision (c), which defines a serious felony to include "`any felony in which the defendant personally uses a firearm." (People v. Bautista (2005) 125 Cal.App.4th 646, 654.) It is possible to be convicted of a violation of section 246.3 as an aider and abettor (People v. Bartow (1996) 46 Cal.App.4th 1573, 1576-1577 [defendant argued that his cohort had fired the gun, and his prior conviction of a violation of section 246.3 was therefore not a serious felony]) or as an accomplice (People v. Rodriguez (1998) 17 Cal.4th 253, 261-262, superseded by statute on other grounds as stated in People v. James (2001) 91 Cal.App.4th 1147, 1149.) Thus, not every conviction of section 246.3 qualifies as a strike, and the record of the prior criminal proceedings must show "the nature or basis of the crime of which the defendant was convicted." (People v. McGee (2006) 38 Cal.4th 682, 691.) However, the court may look to the entire record of the conviction, "but no further." (People v. Guerrero (1988) 44 Cal.3d 343, 355, italics omitted.)
The People note that the probation report for the current offense includes a summary from the Los Angeles Police Department Crime Report of his 1989 conviction. The police report contained accounts from defendants father and other witnesses that defendant "had fired rounds into the air many times in the past." The People argue that the probation report, reciting facts from the 1989 offense, was relevant to show defendants personal use of a firearm. We reject that argument for two reasons. First, the trial court found the prior strike allegation to be true on December 23, 2005, when the current probation report had not yet even been prepared or filed. Thus, even if the current probation report contained information that supported the finding, it was not before the court.
Second, and more importantly, in People v. Trujillo (2006) 40 Cal.4th 165 (Trujillo), the Supreme Court held that a statement in a probation report could not be used to prove that a prior conviction was for a serious felony. The court reaffirmed that when determining whether a prior conviction was a strike, the inquiry "`is limited to an examination of the record of the prior criminal proceeding to determine the nature or basis of the crime of which the defendant was convicted. [Citation.]" (Id. at p. 179, italics omitted.) Thus, the court held that "a defendants statements, made after a defendants plea of guilty has been accepted, that appear in a probation officers report prepared after the guilty plea has been accepted are not part of the record of the prior conviction, because such statements do not `reflect[] the facts of the offense for which the defendant was convicted. [Citation.]" (Ibid.)
We note that People v. Trujillo, supra, 40 Cal.4th 165, was filed on December 11, 2006, only two days before Respondents brief was filed in this matter.
In Trujillo, supra, 40 Cal.4th at p. 179, the court rejected the use of the defendants own admission in the probation report to establish the facts of the underlying conviction. In the present case, the statement relied on was not even that of defendant himself concerning the facts of his crime, but was that of a third person. We must therefore conclude the evidence was insufficient to establish that defendants prior was a strike conviction. (Ibid.)
The proper remedy is to remand the matter for retrial of the prior at the election of the prosecutor. Retrial of a strike allegation after a successful challenge to the sufficiency of the evidence neither offends the double jeopardy bar (Monge v. California (1998) 524 U.S. 721, 734) nor violates the constitutional due process requirement of fundamental fairness. (People v. Barragan (2004) 32 Cal.4th 236, 243, 245.)
IV. DISPOSITION
The finding that defendants prior conviction was a strike is vacated and the matter is remanded for further proceedings consistent with this opinion.
We concur:
McKINSTER, J.
KING, J.