Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC945492.
ELIA, J.
Following a jury trial, appellant Juan Samaniego was found guilty of one count of carjacking (Pen. Code § 215, count one), and one count of second degree burglary (§§ 459, 460, subd. (b), count two). Subsequently, the court found true six prior strike allegations (§§ 667, subds. (b)-(i) and 1170.12), three prior serious felony allegations (§ 667, subd. (a)) and one prior prison term allegation (§ 667.5, subdivision (b)).
All undesignated section references are to the Penal Code.
On April 30, 2010, the court declined to strike any of appellant's prior strike convictions, but exercised its discretion under section 17 to reduce count two to a misdemeanor. Thereafter, the court sentenced appellant to 25 years to life for count one, consecutive to 15 years for the prior serious felony convictions pursuant to section 667, subdivision (a). Appellant filed a timely notice of appeal.
Appellant raises nine issues on appeal, which we shall outline later. For reasons that follow we disagree with all appellant's contentions and affirm the judgment.
Facts and Proceedings Below
Count One—Carjacking Prosecution Witnesses
In mid-March 2009, 17 year-old Joel M. attended high school and worked as a cook at Dio Deka Greek restaurant in Los Gatos. Joel owned a Honda Accord. Joel was friends with Arturo at the A&M shop (A&M) on 13th Street in San Jose. When Joel crashed his car he had it towed to A&M. Since his car was in the shop, Joel borrowed an Expedition from a friend Enoio Galvan. At some point, while he was driving the Expedition Joel was stopped by a California Highway Patrol (CHP) officer and because he did not have a driver's license, the Expedition was towed away.
Joel testified under a grant of immunity because he is here illegally and had provided false papers to his employer regarding his immigration status. When he testified, he acknowledged that he had lied about his immigration status to the police and that his social security card and resident alien card were forged.
Joel was informed that he could not get the Expedition back unless someone with a valid license accompanied him. Joel called Arturo at A&M and asked if he could help him. Arturo could not help Joel because he did not have a valid license, but he said that he knew appellant could help. Joel and appellant agreed that appellant would get the Expedition back and Joel would pay him $200. Appellant told Joel that the tow yard fee to get the Expedition back would be $550.
Approximately three days after the Expedition had been towed, Joel, appellant and the registered owner of the Expedition went first to the CHP office and then, once they received the release, to the tow yard to retrieve the Expedition. After appellant went into the tow yard office, he returned to his truck where Joel was waiting. Appellant told Joel that the fee would be $550. Joel gave appellant $550 in cash and appellant went back into the tow yard office. Once appellant retrieved the Expedition he gave the keys to Joel. Appellant told Joel that the receipt for the money would come in the mail, but Joel never received the receipt. Joel left and went to work.
The registered owner of the Expedition was Heriberto Macedo. He had lent the car to his cousin Enoio Galvan, who was Joel's roommate. He travelled to the Highway Patrol office and the tow yard in another car, not with appellant and Joel. He testified that the Expedition was worth approximately $4500.
Joel testified that he was to give appellant the $200 he owed him in two to three days. Joel borrowed some money from a friend and gave appellant the $200. About a week later appellant called Joel and told him he wanted more money; appellant explained that because he had retrieved the Expedition from the tow yard it belonged to him and if Joel did not pay him he would take back the Expedition. Appellant telephoned Joel several times, but sometimes Joel would not answer the phone. During the phone calls that Joel answered appellant demanded more money.
Approximately two weeks after he got back the Expedition, Joel was in the parking lot of the Dio Deka restaurant getting ready for work. The keys to the Expedition were in the pocket of his pants. While Joel was tying his shoes, appellant came up from behind him, grabbed Joel's wrist, reached into Joel's pocket, pushed him and took the keys away from him. Joel told appellant that he would pay him the extra money, but appellant would not listen. Appellant got into the Expedition, put the car into reverse and backed out fast. Joel had to get out of the way quickly to avoid being run over. Joel had money, his iPhone and a set of cooking knives in the Expedition.
The following day, Joel went with Enoio Galvan and Heriberto Macedo to the police station to report what had happened. Joel testified that he did not call the police immediately after appellant took the Expedition because appellant had taken his phone and he had to go to work.
About a week after the Expedition was taken, Joel got all his keys back, except the Expedition key, from Gabriel Velasquez. Velasquez told him that he could have the Expedition back if he withdrew the charges and paid $200. Joel phoned Velasquez and agreed to pay the money although he did not withdraw the charges. When Joel told Velasquez that he would pay, Velasquez said that he would park the Expedition in the vicinity of A&M in the street at about 10 p.m. Joel went with a friend to look for the truck, but could not find it. Joel tried calling Velasquez several times after that, but was unsuccessful. Joel denied that he had ever told Gabriel Velasquez that he gave the Expedition to appellant voluntarily or that he knew a woman by the name of Marylou Delacruz.
When the Expedition was found by the police more than a month later, the stereo, speakers and rims were missing.
Initially, Joel testified that he paid Macedo $1700 for the damages. However, he clarified that he paid the money to Enoio Galvan. Macedo disputed that Joel ever paid him anything; he confirmed, however, that Enoio Galvan paid for the damages. Joel produced a receipt that he said was signed by Galvan, but Macedo testified that he was familiar with his cousin's signature and that the signature on Joel's receipt did not appear to be that of his cousin.
After the Expedition was reported missing, Los Gatos Police Detective Merissa Knuth tried to locate it. She knew that appellant's name had been mentioned and that he was staying in a trailer or motor home around the area of 24th and Santa Clara. On April 14, she left messages with persons in the area that she wanted appellant to contact her; she did not tell anyone specifically why she was looking for appellant. When she went into her office around 1:45 p.m. on the same day she found that appellant had left her three voicemail messages. She called appellant and spoke for "multiple" minutes.
During her phone conversation with appellant, appellant's first question was if the reason she was looking for him was to do with the Expedition. Appellant told Detective Knuth that Joel had given him the Expedition because Joel owed him money. Specifically, appellant told her that Joel owed him $350 for the impound fee because he, appellant, had paid it out of his own pocket. Detective Knuth asked appellant where he was and he told her he was not in San Jose, but refused to tell her where he was. Detective Knuth told appellant how important it was for him to return the Expedition and asked him to return it either to the police or the owner. Appellant told her that the Expedition was parked in an area that could not be seen from the road; it was located north of A&M on the other side of Highway 101 in a business district, but added that one of his friends might have put it in his yard. Appellant was not very specific about the location. Detective Knuth asked appellant to call back and give her more details, but he never did. She tried to locate the Expedition in the area that appellant told her it was located, but she was unsuccessful.
According to Galvan, eventually the police located the Expedition and had it towed to a tow yard. Joel paid the approximately $425 charge to get the Expedition released and $300 for a new key. Joel still owed Galvan money, which Joel had promised to pay him for damage to the Expedition. He confirmed that the signature that was on the receipt Joel produced in court was not his.
Defense Witnesses
Marylou Delacruz testified that she had been appellant's girlfriend, but her current boyfriend was Juan Cerda. Appellant and Joel came to her house in March. Later, appellant called Joel from her phone because Joel would not answer calls from appellant's phone. Appellant called Joel three times on one day. Joel kept saying that he did not have the money, but then he relented and told appellant to come to Dio Deka to get the money. Appellant drove her and Juan and appellant's nephew to the restaurant; they arrived around 6 p.m. Appellant and his nephew went to the restaurant but came back about 30 minutes later. Appellant was upset because Joel never came out of the restaurant. The same group went back to the restaurant three days later around 7 p.m. This time, appellant went to the restaurant alone, but Joel never came out. They left after half an hour. When asked what they were planning to do after going to the restaurant, Marylou said, "nothing, " they were just there to accompany appellant and planned to "go home when [appellant] got his money."
Gabriel Velasquez testified that he met Joel around March. On one occasion, appellant, Joel and appellant's nephew came to his home so that Velasquez could show appellant a communications business he was setting up for his granddaughters. Velasquez understood that appellant and Joel were friends.
On cross-examination, Velasquez said that the company was called "ACN"; it sold cell phone service, cell phones and video phones "through the networking business." Velasquez explained that "if you get into business, you're able to represent and become a representative of ACN, and they pay you according to whatever services you sell, and phones and- - well services." Velasquez went on to say that they "build a [ ]network of representatives. We have a residual income from every possible rep when they pay the person, you get a percentage of the services that have been sold." When asked by the prosecutor if he recruited more representatives and they successfully sell things, would he get a percentage from the recruits, Velasquez replied, "From all the services that are in our downline that is multilevel type network business, so you get paid, you know, independent of what situation you get paid when they invite people to come into the business, and they get people to honor them. They also get a percentage once they have their requirements met."
Appellant testified in his own defense. He said that he met Joel at A&M one afternoon when he brought in his car with some minor scratches. Joel returned later that day in a tow truck with his car, which was being towed. It looked as if the car had been in an accident. About a week later, Joel asked him if he could help get the Expedition from the tow yard. Appellant agreed to help for $200 and gas money.
Appellant, his nephew, and Joel went to the CHP office. Heriberto Macedo followed in his car. Appellant and Macedo went inside the CHP office and obtained a release for the Expedition. Appellant's friend phoned him and so he went to pick her up on the way to the tow yard. Appellant went into the tow yard and found out how much the fees to recover the Expedition were going to be. Appellant could not recall how much the fees were, but remembered that Joel was $150 "short." Joel made a phone call and then asked appellant to take him home. Appellant took Joel to an apartment building where it appeared to appellant "some guy" gave Joel some money.
Appellant said that the agreement was that Joel would pay him $200 if appellant got the Expedition out of the tow yard, but if Joel did not have the money, he, appellant, would hold the Expedition until Joel came up with the money.
Back at the tow yard, Joel gave appellant some money; appellant could not remember if it was $295 or $395. Appellant gave the money to the person at the tow yard and he got a receipt, which he gave to Joel. The tow yard released the Expedition and appellant gave it to Joel because there was no one else available to drive it. Joel followed appellant to A&M. Joel told appellant that he was getting paid later that day and would pay appellant. According to appellant, Arturo asked Joel to park the Expedition and then he, appellant, put the keys in the office.
Appellant went across the street to have lunch and when he returned the Expedition was gone and Joel did not leave him any money. Appellant phoned Joel several times. At one point, Joel phoned appellant and told him that he did not have the money, but he had a camera worth $500 that appellant could have. Appellant met with Joel and Joel gave appellant the camera to sell. Joel told appellant that if he could not sell it, he would give appellant the money. Later, when appellant tried to sell the camera he found out that it was a "plastic display model." Appellant contacted Joel and Joel told him to bring the camera back and he would pay appellant the money he owed him.
According to appellant, he attempted to see Joel, but Joel "gave [him] the run around." Appellant denied that Joel ever paid him $200 and denied that he demanded more money from Joel.
At some point, appellant's friends Marylou and "Johnny" became aware that Joel owed appellant money. They accompanied appellant to the Dio Deka restaurant twice when he attempted to collect his money. On one occasion he was able to talk to Joel and Joel told him he would give him the truck until he could pay appellant as per their agreement. Joel said he would get the key, but he did not come back.
After appellant talked with Joel on the phone, on April 7, appellant went to the restaurant to pick up the Expedition. Joel handed him the keys and asked appellant how much he owed him. Appellant told him that he owed $50 a day for three weeks. Appellant told Joel he was tired of wasting gas. Appellant denied that he came upon Joel from behind. He said that he met Joel at the restaurant and walked over to where the Expedition was parked. Joel told appellant he would get him his money. Appellant told him that he was going to file a lien on the Expedition in order to get the $50 a day. Joel handed appellant the keys to the Expedition. As appellant was driving away Joel showed him some money, but appellant did not pay attention. Appellant denied that he tried to run over Joel. Appellant said that Joel told him that he was not going to pay him and would instead call the police. Appellant told him to go ahead; that the police were right across the street.
Appellant drove the Expedition until it ran out of gas. When appellant found out that the police were looking for him he called Joel to ask why he reported the Expedition as stolen. Appellant was upset because Joel had given him the keys.
Appellant phoned Detective Knuth three or four times and left messages saying that he heard she was looking for him; he wanted to know what was going on.
Before he left San Jose appellant had a conversation with Joel about him dropping the charges. According to appellant, he told Joel that he was facing serious charges and that he could "go away and never see [his] family ever again." Appellant told Joel that he did not care about the money and would give him the Expedition back; appellant would forget about the money if Joel would drop the charges.
At some point, Gabriel Velasquez agreed to help resolve the dispute between appellant and Joel. The deal that was struck was for appellant to park the Expedition across the street from A&M and Joel was to drop the charges, but Joel never showed up to claim the Expedition and appellant was sure that Joel "never would have dropped the charges."
According to appellant, he left San Jose to go to Mexico around April 27 or April 28; he has a wife and child there. He came back to California because everyone in his family in Mexico told him that running made him look guilty. Appellant reentered the United States in El Paso, Texas. He waited in line for U.S customs. When he got to the window he told the officer that he did not have his identification, but he showed his birth certificate. The officer asked him if he had been arrested and he told her that he had. She asked if he had any warrants and he said yes he had one for a parole violation. She took him into custody.
Appellant admitted that he had several prior felony convictions and that he was on parole.
Count Two—Burglary Prosecution Case
At around 6:30 a.m. on March 28, 2009, San Jose Police Officer Ben Jeffrey received a dispatch to a burglar alarm going off at Plaza Garibaldi Restaurant in San Jose. The area where the alarm went off consisted of a hallway behind the restaurant that allowed access to two different businesses; one business was the restaurant, the other was an auto repair shop. The hallway was accessed from an exterior door. Once in the hallway there were doors to access a bathroom, the auto body shop and on the other side of what was described as a metal security gate was a storage area for restaurant supplies and a door that led to the office area of the restaurant. A strong metal mesh was welded to the security gate when the door was installed, which was approximately seven years before this trial. A surveillance video showed an individual dressed all in black or dark colored clothing and a black hat in the hallway.
Cesar Pascal the co-owner of the restaurant testified that all of the restaurant's doors had sensors and alarms except for the metal gate in the hallway, which was usually kept locked. The lock could be opened and closed only from the inside. Part of the metal mesh on the gate had been pried open. Pascal testified that the alarm company informed him that a sensor indicated that the office door was open. It did not appear to Pascal that anything was taken from the area of the hallway or the office. Pascal did not remember if the office door was open when he came in with the police and there was no video of the door being opened.
One of the security cameras that Pascal had installed in the hallway pointed toward the office where the restaurant kept liquor and computers and where the safe was located. The security cameras activate only when someone crosses the path of the sensor. Pascal thought that the door to the exterior, which was located at the beginning of the hallway, was kept locked, but he did not know for sure that this was the case because the restaurant did not use the door at all.
Pascal testified that when the alarm is activated and the alarmed door is opened a beeping sound starts to sound inside the control box. If a code is not entered within a number of seconds, a loud alarm goes off. When Pascal arrived at the restaurant, the alarm was still sounding.
On March 28, there was a plastic box with files, a wireless router, a remote control, cables and cans of soda in the hallway.
A video from the hallway camera was played for the jury.
Defense Case
Gabriel Velasquez testified that he and his brother Carlos Velasquez were the landlords for A&M and Plaza Garibaldi. He knew appellant through A&M where appellant did some mechanical work. After he learned that appellant and his nephew were living in appellant's truck, Velasquez allowed them to stay in a motor home or RV that was parked behind the auto shop in the back of Plaza Garibaldi. There was no drain for the bathroom in the RV and so Velasquez asked appellant to use another restroom. He did not charge appellant any rent, but did asked him to keep an eye on the building and cars that were parked behind the restaurant.
Velasquez testified that there was a hallway between the auto shop and the restaurant. The bathroom in the hallway was for tenants and their customers. The restroom door was supposed to be kept unlocked during the day, but the exterior door was normally kept locked. As far as he could remember, the bathroom door had a sign on it, but because he was not always there he was not sure whether or not it always had a sign. A beige door opposite the bathroom led to his storage area. He told appellant about the bathroom in the hallway, but did not give appellant a key to the bathroom or exterior door. Velasquez said that he did not give appellant permission to go into the area beyond the metal security gate.
Over defense counsel's objection, the prosecution played the video from the restaurant for Velasquez to view. After reviewing the video, Velasquez testified that the person in the video appeared to be appellant, but he was not completely certain.
Appellant acknowledged that he was the person seen in the video of the section of the hallway behind the security gate near the restaurant's office door. He said that on Saturday, March 28, he was partying with some customers from the restaurant. Sometimes the restaurant stays open until about 1:30 or 2:00 a.m. and then customers go back to the area behind the restaurant to relax and drink. Appellant explained that he was wearing black clothing because he was trying to catch whoever was stealing stereos from the cars that were parked behind the restaurant.
Appellant said that he was in the auto shop behind the restaurant smoking marijuana with some of the young employees. He had been drinking and was high. Around 6 a.m. he needed to use a bathroom. Velasquez had shown him the exterior door to the hallway area and told him there was a bathroom inside. Appellant said that the exterior door was usually unlocked. Appellant had not used the bathroom in the hallway area before; instead he used the bathroom at work or at McDonalds or another restaurant. However, on this occasion because he had been drinking he went into the Plaza Garibaldi building hallway to use the bathroom. He was not sure which door was the bathroom door. The bathroom door did not have a sign, just an old piece of paper; he thought it was a storeroom door. The doors on the right and left of the hallway were locked. He went forward to another door and then to a glass door. The metal security gate was wide open. He never touched the gate; he walked straight through it. He did not bend the mesh on the gate.
Appellant said that he tried to open a glass door; no alarm went off when he turned the doorknob. His intention was to go to the bathroom, but he noticed there was no bathroom there. Through the glass door he saw some "little round lights that were going crazy." Appellant noticed a shelf with sodas and bent over to look at them because he wanted one. He saw food, and because he was hungry and he and his nephew were barely making ends meet, he thought about taking some, but decided it would be wrong. While looking at the shelves, he bent over a Tupperware box but did not touch it.
Appellant thought that he was permitted to be in the hallway because Velasquez had told him that he owned the whole building; appellant thought that meant the restaurant as well. He turned off the lights he had turned on and left the building. Some people who were there told him there were lights still on inside, so he went back in to check; not seeing any lights he went back out. He went across the street to use the bathroom at McDonalds. After that he went to his girlfriend's house, which was across the street on 25th and St. John. Later, when he returned he was told that an alarm went off in the building.
Discussion
I. Motion for Severance
Before trial, appellant moved to sever count one from count two. The court denied the motion for severance. Appellant contends that the trial court erred and in so doing violated his due process rights to a fair trial under both the California and Federal Constitutions.
After reviewing the preliminary hearing transcript, the police reports and a video tape of appellant in the Plaza Garibaldi restaurant hallway, the trial court found that the "charges do appear to be the same class. Does not appear to be a situation of the weak case being bolstered by a strong case or two weak cases. While I would agree with defense counsel's characterization as to the severity of the carjacking alleged here, I don't necessarily mean that relates to the strength of the case as relates to proof troubles me, and in making this ruling assume that there is not any cross-admissibility as relates to intent of the witness. [¶] You may show otherwise that at the time of the motions in limine, but for the purpose of this motion, I am going to deny --even without cross-disability [sic] or sharing of intent under 1101b -- clearly does not involve a death penalty case --although it is a very severe case, I don't think it will result in an unfair trial for Mr. Samaniego to have both cases proceed."
Joinder and severance of different criminal charges are governed by section 954 (People v. Maury (2003) 30 Cal.4th 342, 391), which permits the joinder for trial of different offenses under certain circumstances: "[A]n 'accusatory pleading may charge two or more different offenses connected together in their commission, ... or two or more different offenses of the same class of crimes or offenses, ... provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately.' " (Ibid.)
The joinder of related charges, " 'whether in a single accusatory pleading or by consolidation of several accusatory pleadings, ordinarily avoids needless harassment of the defendant and the waste of public funds which may result if the same general facts were to be tried in two or more separate trials [citation], and in several respects separate trials would result in the same factual issues being presented in both trials, ' " and therefore the law prefers consolidation of charges. (People v. Ochoa (1998) 19 Cal.4th 353, 409.) If the requirements for joinder under section 954 are met, a defendant must then make "a clear showing of potential prejudice" arising from the consolidation of joined counts to establish error in the denial of a motion to sever. (People v. Bradford (1997) 15 Cal.4th 1229, 1315 (Bradford).) This court reviews a trial court's ruling on a motion to sever for an abuse of discretion. (Ibid.) In determining whether a trial court abused its discretion in denying a motion to sever, we examine the record before the trial court at the time of its ruling. (People v. Mendoza (2000) 24 Cal.4th 130, 161.)
" ' "The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried." [Citation.] [¶] "The determination of prejudice is necessarily dependent on the particular circumstances of each individual case, but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial." [Citation.] Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a "weak" case has been joined with a "strong" case, or with another "weak" case, so that the "spillover" effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. [Citations]' [Citations]" (Bradford, supra, 15 Cal.4th at p. 1315.)
" '[T]he first step in assessing whether a combined trial [would have been] prejudicial is to determine whether evidence on each of the joined charges would have been admissible, under Evidence Code section 1101, in separate trials on the others. If so, any inference of prejudice is dispelled.' [Citations.] Cross-admissibility suffices to negate prejudice, but it is not essential for that purpose. Although ' "we have held that cross-admissibility ordinarily dispels any inference of prejudice, we have never held that the absence of cross-admissibility, by itself, sufficed to demonstrate prejudice." ' [Citation.]" (Bradford, supra, 15 Cal.4th at p. 1315-1316.)
In fact, section 954.1 provides that where "two or more different offenses of the same class of crimes or offenses have been charged together in the same accusatory pleading, or where two or more accusatory pleadings charging offenses of the same class of crimes or offenses have been consolidated, evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact."
Initially, appellant asserts that robbery and carjacking are not within the same class of crimes. However, appellant did not move for a severance on the grounds that he now asserts. In moving to sever the charges defense counsel stated that section 954.1 does allow consolidation of charges where the crimes are of the same class. Thus, implicitly, counsel conceded rightly or wrongly that the two crimes with which appellant was charged were of the same class. Thus, he has forfeited the right to make the argument on appeal that robbery and carjacking are not within the same class of crimes. (People v. Jenkins (2000) 22 Cal.4th 900, 949 [specific argument for severance was forfeited on appeal because it was not raised in the trial court].)
Defense counsel actually cited to section 94.1. However, the Penal Code does not contain a section 94.1. Accordingly, we must assume that counsel was referring to section 954.1 or 954.
Nevertheless, defense counsel did argue that the carjacking charge "by its very nature arouses certain emotions in people, and there is certainly prejudice and stigma attached to that charge. I think the main issue we should focus on though is whether the District Attorney is joining two comparatively weak cases.... [¶] This is a case where two weak cases, if they are joined, have a prejudicial affect on the jury, and I think each could carry a stigma that would interfere with the jury's ability to focus on the guilt issues in this cases and whether my client is guilty beyond a reasonable doubt."
Defense counsel reminded the trial court that "both counsel indicated [to the court] in chambers last week that we did not anticipate that the two incidents would be cross-admissible, so I'm not necessarily going to address that prong."
Accordingly, it appears that counsel was arguing that the carjacking charge was unusually likely to inflame the jury against appellant and a "weak" case had been joined with another "weak" case.
On appeal, appellant argues that the carjacking was particularly inflammatory because "[t]he thought of having a vehicle taken from one's possession by force and fear is bound to produce a powerful impression on a juror's mind. The allegation of commercial burglary, by contrast, would not have aroused similar concerns in the jury. If they had not been exposed to the evidence on the carjacking charge, they would probably have been able to assess the evidence on the burglary more dispassionately. [¶] The evidence in each case was weak."
With respect to appellant's argument that the prosecution joined two weak cases, the trial court reasonably could conclude the evidence that demonstrated appellant's guilt in each incident was substantially similar in weight and sufficient to convict appellant on both charges. In the carjacking incident, Joel identified appellant as the person who took the keys to the Expedition from his pocket. In the burglary incident, the video tape showed someone dressed all in black who resembled appellant. The evidence linking appellant to each crime was compelling.
"Furthermore, the benefits of joinder are not outweighed—and severance is not required—merely because properly joined charges might make it more difficult for a defendant to avoid conviction compared with his or her chances were the charges to be separately tried. [Citations.]" (People v. Soper (2009) 45 Cal.4th 759, 781 (Soper).)
Finally, the denial of the severance motion did not result in actual unfairness so great that it denied appellant due process or deprived him of his right to a fair trial. (Soper, supra, 45 Cal.4th at p. 783; People v. Cook (2006) 39 Cal.4th 566, 583.) "[T]he consolidated offenses were factually separable. Thus, there was a minimal risk of confusing the jury or of having the jury consider the commission of one of the joined crimes as evidence of defendant's commission of another of the joined crimes." (People v. Mendoza, supra, 24 Cal.4th at p. 163; Soper, supra, at p. 784.) The prosecution did not suggest that evidence of one incident could be used to prove or strengthen the other incident. (Cf. People v. Grant (2003) 113 Cal.App.4th 579, 589-591.)
In sum, the evidence underlying each incident was relatively straightforward and distinct. Further, the evidence related to each incident independently was sufficient to support appellant's conviction of the crimes charged. There was no great disparity in the nature of the two charges and the facts of each crime, compared to the other, were not likely to inflame the jury unduly. Although one charge was for carjacking, the facts underlying the charge were not egregious; that is appellant used very little force to take Joel's keys. The strength of the evidence supporting each offense was relatively similar. Accordingly, we conclude appellant has failed to demonstrate either that his trial was grossly unfair or the clear showing of prejudice required to demonstrate error in a trial court's denial of a motion to sever properly joined charges. (Soper, supra, 45 Cal.4th at p. 784.)
II. Jury Instruction —Prior Convictions
In pretrial discussion regarding the admission of appellant's prior convictions for purposes of impeachment, defense counsel expressed concern that even with a limiting instruction, the jury would be tempted to use the prior convictions as evidence of propensity. The court stated the jury would be instructed on how to use the evidence. After appellant testified and acknowledged that he had several prior felony convictions the court instructed the jury with CALCRIM No. 316. Specifically, the court told the jury, "If you find that a witness has been convicted of a felony or a misdemeanor, you may consider that fact in evaluating the credibility of a witness's testimony. The fact of a conviction does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and why that fact makes the witness less believable."
Appellant argues that because the court omitted the word "only" from CALCRIM No. 316, the jurors were not told that they were not to use the evidence of prior convictions for any other purpose. Thus, appellant asserts, the trial court prejudicially erred and violated his federal and state due process rights by failing to instruct the jury that they could use the evidence of his prior convictions only in assessing his credibility.
CALCRIM No. 316 provides, "If you find that a witness has been convicted of a felony, you may consider that fact [only] in evaluating the credibility of the witness's testimony. The fact of a conviction does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable." As the bench notes to CALCRIM No. 316 indicate, if a felony conviction has been admitted only on the issue of credibility, the bracketed word "only" is to be used. (CALCRIM No. 316 (2009) p. 93.) There is no sua sponte duty to give this instruction; however, the instruction must be given on request. (People v. Kendrick (1989) 211 Cal.App.3d 1273; People v. Hernandez (2004) 33 Cal.4th 1040, 1051–1052 [overruling People v. Mayfield (1972) 23 Cal.App.3d 236, which had found a sua sponte duty to give limiting instruction on felony convictions admitted for impeachment].)
Defense counsel did not object to the giving of the instruction in the form given by the court. Predictably, appellant contends that if counsel's failure to object forfeits this claim on appeal, he was denied effective assistance of counsel. "It is said that the failure to object to an instruction in the trial court waives any claim of error unless the claimed error affected the substantial rights of the defendant, i.e., resulted in a miscarriage of justice, making it reasonably probable the defendant would have obtained a more favorable result in the absence of error. [Citations.]" (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) Ascertaining whether claimed instructional error affected the defendant's substantial rights requires an examination of the merits of the claim. (Ibid.) Similarly, to establish a claim of ineffective assistance of counsel the defendant must prove both counsel's representation was objectively deficient and, but for counsel's errors, the defendant would have received a more favorable result. (People v. Bradford (1997) 14 Cal.4th 1005, 1051.) In view of these principles we examine the merits of appellant's claim with respect to CALCRIM No. 316.
Jury instructions are not considered in isolation, but rather in the context of the entire charge and the arguments of the parties. (People v. Young (2005) 34 Cal.4th 1149, 1202.) In other words, in assessing a claim of instructional error, we view the challenged instruction in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood that the jury applied the challenged instruction in a manner that violated the Constitution. (People v. Jablonski (2006) 37 Cal.4th 774, 831.) In so doing, we assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions given to them. (People v. Guerra (2006) 37 Cal.4th 1067, 1148-1149.) Instructions should be interpreted, if possible, to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) "The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions." (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)
Here, immediately preceding the instruction on assessing witness credibility, the court instructed the jury with CALCRIM No. 303 as follows: "During the trial certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and no other." Given the fact that this instruction immediately preceded the instruction of assessing witness credibility, the jury would have realized the two instructions were related to each other. To put it another way, taken together, the jury would have understood that the instruction of using evidence for a limited purpose applied to evidence of prior convictions. We presume jurors use intelligence and common sense when applying instructions. (People v. Bragg (2008) 161 Cal.App.4th 1385, 1396.)
Furthermore, the prosecutor did not mention the prior convictions during closing argument and never suggested to the jury that they should infer propensity to commit crimes from those convictions. Thus, it is reasonable to conclude that the jury recognized the limited purpose of the prior felonies evidence.
Accordingly, we find no merit in appellant's contention that his state and federal due process rights were violated.
III. Jury Instruction—Prior Conviction—Believability
In a second challenge to CALCRIM No. 316 as given in this case, appellant argues that instead of informing the jury that it was up to them to decide whether the fact of a conviction makes a witness less believable, the court told the jury to decide why the fact of a conviction makes a witness less believable.
Appellant is correct that when the court read CALCRIM No. 316 to the jury, the court changed the word whether to why. Appellant argues that by informing the jury that the fact of a conviction makes a witness less believable, the court's instruction invaded the province of the jury by imposing on them a mandatory presumption that any witness who has previously been convicted of a crime is less believable as a result, regardless of any considerations to the contrary that are appropriate to the particular case. Defense counsel did not object to the court's rendition of the instruction.
We may review any instruction that affects a defendant's "substantial rights, " with or without a trial objection. (Pen. Code, § 1259.) Again we note that "[a]scertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim-at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was." (People v. Andersen, supra, 26 Cal.App.4th at p. 1249.) In any event, appellant's position is that the challenged instruction, as given, was not correct in law. Thus, appellant did not have to raise his argument at trial. Accordingly, we review appellant's claim on the merits.
We review de novo whether a jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) Our task is to determine whether the trial court " 'fully and fairly instructed on the applicable law.' [Citation.]" (People v. Ramos, supra, 163 Cal.App.4th at p. 1088.)
If the instructions are claimed to be conflicting or ambiguous, "we inquire whether the jury was 'reasonably likely' to have construed them in a manner that violates the defendant's rights." (People v. Rogers (2006) 39 Cal.4th 826, 873.) As noted, we look to the instructions as a whole and the entire record of trial, including the arguments of counsel. (People v. Stone (2008) 160 Cal.App.4th 323, 331; People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) We assume that the jurors are " ' "intelligent persons and capable of understanding and correlating all jury instructions... given." ' " (Ramos, supra, 163 Cal.App.4th at p. 1089.) We reiterate that we will interpret the instructions to support the judgment rather than to defeat it. (Id. at p. 1088.)
We reject appellant's challenge. First, contrary to appellant's argument, substituting the word why for whether did not direct the jury that they were required to discredit the testimony of any witness who had a prior conviction. In fact, the preceding sentence specifically instructed the jury that the "fact of a conviction does not necessarily destroy or impair a witness's credibility." Moreover, the instruction explicitly stated that the jury "may consider that fact in evaluating the credibility of a witness's testimony." Implicitly, this means that they were not required so to do.
Further, in instructing the jury that they could consider why a conviction made the witness less believable, the instruction asked the jury to articulate how the conviction reflected on credibility—something that was to appellant's benefit. Thus, the instruction, taken as a whole, provided that rather than dismiss appellant's testimony in its entirety based on his extensive criminal history, the jury was instructed to determine why his extensive criminal history made his testimony less believable, but only after they had concluded that it did.
Accordingly, we conclude that there is no reasonable likelihood that the jury applied the challenged instruction in a manner that violated either the federal or state Constitutions. (People v. Jablonski, supra, 37 Cal.4th at p. 831.) To put it simply, the trial court's inadvertent misreading of the instruction does not appear to be error, because no reasonable juror would have understood the instruction to impose on them a mandatory presumption that any witness who has previously been convicted of a crime is less believable as a result.
Second, appellant ignores the fact that the written instructions with which the jury was supplied tracked the language of CALCRIM No. 316, and did not substitute the word why for whether.
The very first thing that the jury was told when the court read all the jury instructions after the close of evidence was that the court would give the jurors several copies of the instructions to use in the jury room. On the written copy of the instruction contained in the record, the words "a copy" are struck through and the words "several copies" have been written in by hand.
As our Supreme Court has instructed: "We of course presume 'that jurors understand and follow the court's instructions.' [Citation.] This presumption includes the written instructions. [Citation.]" (People v. Wilson (2008) 44 Cal.4th 758, 803.) Thus, we presume that the jurors follow the written instructions. (People v. McLain (1988) 46 Cal.3d 97, 111, fn. 2.) The court gave the jurors several copies of the written instructions; thus, there can be no violation of any federal constitutional provision. (People v. Osband (1996) 13 Cal.4th 622, 717.)
Even if we were to accept appellant's argument that the instruction as read by the court to the jury created a mandatory presumption, as the Attorney General points out, "it strains credulity to think that the jury remembered one word from pages of jury instructions after a long trial. If the jury wanted guidance on evaluating credibility, it would have referred to the written instructions. Put another way, if asked during deliberations to recall the instruction, there is no possibility whatsoever that any juror could have recalled if the trial court used the word 'whether' or 'why.' "
IV. Impeachment Evidence
Before trial, the court ruled that if appellant testified he could be impeached with several of his prior convictions. Specifically, the court ruled that appellant could be impeached with his 1988 conviction for hit and run with injury; his 1990 conviction for assault with a deadly weapon; and his 1999 convictions for arson, attempted arson, and criminal threats. The court excluded appellant's 1997 misdemeanor conviction for assault with a deadly weapon, his 1997 misdemeanor vandalism conviction and one of appellant's 1999 arson convictions.
Appellant contends that the court prejudicially erred and violated his due process rights in allowing him to be impeached with three prior convictions that arose from the same incident as well as two older convictions. He asserts that by allowing him "to be impeached with two arson convictions rather than one and with the very old convictions for offenses that occurred in the 1980's, the court erred and abused its discretion."
Evidence Code section 788 permits an attack upon the credibility of a witness with the fact that the witness has been convicted of a felony. Further, our state Constitution provides that "Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding." (Cal. Const., art. I, § 28, subd. (f)(4).) Admission of such impeachment evidence is subject to the court's discretion under Evidence Code section 352 to exclude evidence when its probative value is substantially outweighed by its danger for undue prejudice. (People v. Castro (1985) 38 Cal.3d 301, 312.)
The trial court has "broad discretion to admit or exclude prior convictions for impeachment purposes, ... and in most instances the appellate courts will uphold its exercise whether the conviction is admitted or excluded." (People v. Collins (1986) 42 Cal.3d 378, 389.) " 'A trial court's exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice. [Citation.] In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.]' [Citation.]" (People v. Green (1995) 34 Cal.App.4th 165, 182-183.)
In exercising its discretion, the trial court should take into account the following factors: "(1) whether the prior conviction reflects adversely on an individual's honesty or veracity; (2) the nearness or remoteness in time of a prior conviction; (3) whether the conduct is for the same or substantially similar conduct to the charged offense; and (4) what the effect will be if the defendant does not testify out of fear of being prejudiced because of the impeachment by prior convictions. [Citation.]" (People v. Mendoza (2000) 78 Cal.App.4th 918, 925.) However, these factors "need not be rigidly followed. [Citation.]" (Ibid.)
In essence appellant contends that one arson conviction and one criminal threats conviction would have adequately served to impeach him with less risk of abuse. Taken together the two arson convictions and the convictions from the 1980's "caused the jury to perceive [him] as a violent and dangerous person who should be confined regardless of whether he committed the charged offenses, regardless of any instruction that the evidence should be considered only as it reflects upon credibility."
It is important to note that appellant does not contend that his prior convictions had no bearing on his veracity, or that prior convictions were similar to the offenses charged. Nor can he claim that admission of the prior convictions persuaded him not to testify.
Defense counsel did argue that the prior assault convictions were similar to the carjacking charge. However, he conceded that it would be acceptable to the defense if the court excluded one of appellant's two assault convictions, which the court did. Even if the court had not done so, it would not have been an abuse of discretion. (People v. Muldrow (1988) 202 Cal.App.3d 636, 646-647, [no abuse of discretion in admission for impeachment of six prior felony convictions, three identical to charged offense]; People v. Stewart (1985) 171 Cal.App.3d 59, 65-66, [no abuse of discretion where trial court admitted evidence of four prior robbery convictions to impeach robbery defendant].)
With respect to appellant's argument that the admission of two arson convictions was one arson conviction too many we note two things. First, appellant was impeached with only one arson conviction and one attempted arson conviction, not two arson convictions. Further, we note that the arson and attempted arson did not arise from the same incident as appellant contends. Second, both People v. Dillingham (1986) 186 Cal.App.3d 688, 695 (Dillingham), and People v. Castro (1986) 186 Cal.App.3d 1211, 1216, have held there is no limitation to the number of priors admissible for impeachment. "[W]hether or not more than one prior felony should be admitted is simply one of the factors which must be weighed against the danger of prejudice." (Dillingham, supra, 186 Cal.App.3d at p. 695.) "[A] series of crimes relevant to credibility is more probative than is a single such offense." (Ibid.)
The trial court noted that while they all occurred on the same day, the arson, attempted arson and criminal threats "involve[d] three separate acts." We find nothing in the record to disagree with that assessment.
With respect to appellant's remoteness argument, appellant's 1988 and 1990 convictions could be characterized as remote, which would generally lessen their probative value. Nevertheless, convictions remote in time are not automatically inadmissible for impeachment purposes. Even a fairly remote prior conviction is admissible if the defendant has not led a legally blameless life since the time of the remote prior. (People v. Boyd (1985) 167 Cal.App.3d 36, 44; People v. Kemper (1981) 125 Cal.App.3d 451, 454-455.)
Given the depth of appellant's criminal history and the fact that he has spent a good portion of his adult life in prison, and was on parole for a prior offense when he committed the crimes in this case, remoteness is not truly an issue.
The probation officer's report in this case shows that on October 31, 1990, appellant was sentenced to three years in state prison with credit for time served of 478 days. Thereafter, on March 12, 1999, appellant was sentenced to 11 years with credit of 273 days for time served. He was released in 2007. Thus, over a period of approximately 17 years, appellant was incarcerated for at least 14 of those years.
To show a violation of due process, appellant must demonstrate that the erroneous admission of the evidence was so serious as to violate his federal constitutional rights to due process, rendering his trial fundamentally unfair. (People v. Albarran (2007) 149 Cal.App.4th 214, 229.) Only where there are no permissible inferences the jury may draw from the evidence will the admission of an item of evidence violate due process. (Jammal v. Van de Kamp (9th Cir.1991) 926 F.2d 918, 920.) Here, the prior convictions used to impeach appellant were highly relevant to credibility, the prior convictions' use was not likely to mislead the jury, and the use of the prior convictions did not render appellant's trial fundamentally unfair. (Reiger v. Christensen (9th Cir.1986) 789 F.2d 1425, 1430; People v. Albarran, supra, 149 Cal.App.4th at p. 229.)
Thus, we conclude that the admission of the evidence of appellant's prior convictions to impeach him was not error.
V. Giving of CALCRIM No. 371
Over appellant's objection, the trial court instructed the jury with CALCRIM No. 371 as follows. "Consciousness of guilt, suppression and fabrication of evidence: if the defendant tried to hide evidence or discourage someone from testifying against him, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself."
Appellant contends that the trial court prejudicially erred and violated his due process rights by instructing the jury with CALCRIM No. 371. In essence, he asserts that the giving of the instruction was unsupported by evidence that he initiated the negotiations for Joel to withdraw the carjacking allegation. Further, appellant argues that the fact that he sought to resolve the matter out of court does not give rise to a logical, reasonable inference that he was trying to suppress evidence. Respectfully, we disagree.
" 'It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference. [Citation.] Whether or not any given set of facts may constitute suppression or attempted suppression of evidence from which a trier of fact can infer a consciousness of guilt on the part of a defendant is a question of law. Thus in order for a jury to be instructed that it can infer a consciousness of guilt from suppression of adverse evidence by a defendant, there must be some evidence in the record which, if believed by the jury, will sufficiently support the suggested inference.' [Citation.]" (People v. Hart (1999) 20 Cal.4th 546, 620.)
In explaining why it was overruling defense counsel's objection to the giving of CALCRIM No. 371, the court stated that while defense counsel was "free to argue that the efforts by Mr. Sameniego to get [Joel], quote, to drop the charges, unquote may not be incriminating in any way, I think it is perfectly legitimate for the jury to consider that in fact that was an effort to dissuade him from testifying against him by trying to convince him to drop the charges, and that is a factual determination for the jury to consider."
Despite appellant's arguments to the contrary, we conclude that there was substantial evidence to support the giving of the instruction at issue here. We point out that appellant testified that he offered to return the Expedition in exchange for Joel dropping the charges. When asked by defense counsel if he had ever had a conversation with Joel about dropping the charges, appellant testified that before he left for Mexico he called Joel and said that he was facing some serious charges and could go away and never see his family again; and that he would give the truck back, he did not care about the money, "just go take these charges off...."
Appellant's testimony was sufficient to support the giving of CALCRIM No. 371. The jury reasonably could infer from the evidence that appellant tried to get Joel to drop the charges in exchange for him bringing back the truck that appellant was attempting to discourage Joel from testifying against him. Accordingly, we find no error.
VI. Claim of Right Defense
The court instructed the jury that if appellant "obtained property under a claim [of] right believing that he had a right to a specific property, that is not a defense to the crime of carjacking." Appellant contends that the trial court prejudicially erred and violated his state and federal due process rights by so instructing the jury.
"The claim-of-right defense provides that a defendant's good faith belief, even if mistakenly held, that he has a right or claim to property he takes from another negates the felonious intent necessary for conviction of theft or robbery. At common law, a claim of right was recognized as a defense to larceny because it was deemed to negate the animus furandi, or intent to steal, of that offense. (See 4 Blackstone, Commentaries 230 (Blackstone).) Since robbery was viewed as an aggravated form of larceny, it was likewise subject to the same claim-of-right defense. (Id. at pp. 241-243.)" (People v. Tufunga (1999) 21 Cal.4th 935, 938.)
Essentially, appellant argues that claim of right is a defense to carjacking because the crime requires a "felonious taking" similar to the crime of robbery. Appellant is correct that carjacking requires a felonious taking. Section 215, subdivision (a) provides: " 'Carjacking' is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear." (Italics added.)
Appellant argues that because the Legislature used the same language in the carjacking statute as in the robbery statute this indicates that it intended the same animus furandi or felonious intent, which is consistent with a claim of right.
Appellant recognizes that in People v. Cabrera (2007) 152 Cal.App.4th 695 (Cabrera), the Fourth District Court of Appeal held that a claim of right is not a defense to carjacking. However, he asserts that Cabrera was wrongly decided.
In Cabrera, the defendant asserted that the trial court erred by precluding a claim of right defense to carjacking. (Cabrera, supra, 152 Cal.App.4th at p. 701.) In rejecting that contention, the reviewing court relied upon the concurring opinion of Justice Werdegar in People v. Montoya (2004) 33 Cal.4th 1031, 1036-1038 (Montoya). Justice Werderger's concurring opinion concluded that carjacking is a crime against possession rather than ownership and thus not subject to a claim of right defense. The majority opinion in Montoya did not consider this point, having resolved the matter on other grounds. (Montoya, supra at p.1035, fn. 3.)
We agree with the discussion in Cabrera, supra, 152 Cal.App.4th 695, 701-703. Section 215, subdivision (a) uses the word "possession" three times. The crime of carjacking is committed against the possessor or passengers in a vehicle and not necessarily against the owner. (Id. at p. 702.) Furthermore, the statute punishes a temporary deprivation of possession. (Id. at p. 703.) "The fact that carjacking does not require proof of an intent to permanently deprive the victim of a motor vehicle buttresses Justice Werdegar's conclusion that carjacking is strictly a crime against possession rather than ownership." (Ibid.)
As Justice Werderger explained, "In Tufunga, ... we held that in adopting the phrase 'felonious taking' in the robbery and theft statutes, the Legislature intended to incorporate into those statutes the common law meaning of the phrase. (Tufunga, supra, 21 Cal.4th at p. 946....) To extend that holding so as to govern carjacking, also defined as a 'felonious taking, ' would run contrary to the legislative intent underlying the enactment of the carjacking statute. The plain language of that statute, wherein the word 'possession' is thrice repeated, makes that intent evident. Carjacking is defined as the taking of a vehicle from 'the possession of another' with the intent to deprive the person 'in possession' of his or her 'possession' [citation]. To require for a carjacking conviction, as defendant would have it, that the defendant have intended to deprive the vehicle owner of the vehicle or its value, based on the statute's introductory 'felonious taking' phraseology, would contravene the Legislature's evident intent to create, as the Court of Appeal recognized, 'a crime against the possessor or passengers in a vehicle, ' not a crime against ownership. Contrary to our reasoning about the robbery statute in Tufunga, the Legislature in referring to carjacking as a 'felonious taking' apparently did not intend that phrase to carry the same meaning it had at common law. [¶] This conclusion is consistent with the historic fact that the carjacking statute, enacted in 1993 (Stats.1993, ch. 611, § 6, p. 3508), responds to a relatively modern, urban problem, whereas the robbery statute [citation] was enacted in the mid-19th century. (See Tufunga, supra, 21 Cal.4th at p. 946....) That the statutes are of such disparate origin further supports the conclusion that in the carjacking statute, unlike the robbery statute in Tufunga, the Legislature did not intend simply to incorporate the narrow common law understanding of 'felonious taking.' " (Montoya, supra, 33 Cal.4th at p. 1038 (conc. opn of Werderger, J.).) We are persuaded by Justice Werdegar's reasoning.
Accordingly, we conclude that the trial court was correct in instructing the jury that a claim of right defense does not apply to the crime of carjacking.
VII. Misleading the Jury
Appellant contends that the trial court prejudicially erred and violated his due process rights by misleading the jury about the presumption of innocence.
During his argument to the jury, defense counsel told the jury that with regard to Joel's testimony, "[h]is testimony does not come anywhere near the beyond a reasonable doubt standard. The gold standard, and [the prosecutor] in her closing goes, well, why would he lie? That is an example of a district attorney trying to switch the burden of proof saying assume my complaining witness is telling the truth and the... defendant has to prove that he's lying. It is the exact opposite of that. You start out by assuming all the charges are false. That is what the reasonable doubt presumption of innocence standard is all about." The prosecutor objected to this argument and the trial court sustained the objection.
Later, outside the presence of the jury, defense counsel told the court that "if the jury is to presume that the charges are not true, that my client is innocent, that I think I'm allowed to argue that the presumption is that he's not guilty, that he's been falsely charged." The court told defense counsel, "Well, that is not what you said. You said they are to presume to be false, and what is not the statement -- the standard is a presumption of innocence places the burden of proof on the district attorney. The way I took your comment was a filter through which the jury is to view the evidence. Your presumption that it is false and through that filter the district attorney has to do that, that is not the basis that it places the burden of proof on the district attorney to prove it beyond a reasonable doubt, but it is not a comment on the strength or how they're to view the evidence. That is how I took it. That is why I sustained that objection. [¶] What you just said was maybe misheard. What you just said right now would be fine and you can certainly say that at 1:30, but for them to presume that to be false, to me is implying a filter through which how they are to see the evidence, and I don't think that is what the standard is."
Appellant asserts that by sustaining the prosecutor's objection the court misled the jury on the presumption of innocence. This contention is without merit.
Appellant argues that an instruction that lowers the prosecution's burden of proof or may be interpreted as doing so by a reasonable jury violates due process. We do not disagree, but fail to see how this aids his argument.
Certainly, the due process clauses of the Fifth and Fourteenth Amendments to the federal Constitution mandate that a defendant can only be convicted if every element of a crime is proven beyond a reasonable doubt. (Sullivan v. Louisiana (1993) 508 U.S. 275, 278.) Similarly, the presumption of innocence is tied to the prosecution's burden to prove a defendant guilty beyond a reasonable doubt solely on the facts proven at trial. (Taylor v. Kentucky (1978) 436 U.S. 478, 483.)
Appellant's argument implies that by sustaining the prosecutor's objection to defense counsel's argument, the court somehow gave an inadequate or misleading instruction on the presumption of innocence.
We point out that the jury was instructed that appellant was presumed innocent and that the prosecutor had the burden of proof beyond a reasonable doubt as to each element of the crimes charged.
We are not persuaded that the court erred in sustaining the prosecutor's objection. Defense counsel's argument was at best confusing and at worst suggested to the jury that the burden of proof meant that the jury was to presume that the prosecutor's complaining witness was telling lies. There is no such presumption regarding the credibility of witnesses.
Although appellant concedes that the court did instruct the jury on the presumption of innocence and the prosecutor's burden of proof, he argues that the jury had to confront the contradiction between that instruction and the court's indication that defense counsel misstated the law when he said that "You start out by assuming all the charges are false. That is what the reasonable doubt presumption of innocence standard is all about."
There are two flaws with appellant's argument. First, the prosecutor did not object to just these two sentences, but to the whole of defense counsel's argument concerning the burden of proof, including the part where defense counsel implicitly urged the jurors that they had to presume that the prosecution witnesses were not telling the truth. Second, there is no reasonable possibility that the jurors "confronted" any "contradiction" because they were specifically told to "follow the law" as the court explained it to them. Absent any contrary indication, we presume the jury followed this instruction. (People v. Gray (2005) 37 Cal.4th 168, 217.)
In sum, appellant has not persuaded this court that he was denied due process of law.
VIII. Prosecutorial Misconduct
Appellant contends that the prosecutor committed misconduct and violated his due process rights and right to counsel by misleading the jury about its role and about the standard of proof beyond a reasonable doubt by telling the jury that defense counsel argue reasonable doubt when the facts and the law are not on their side; and by making assertions of fact not in evidence. Further, this claim is not forfeited because although defense counsel did not object, any objection would have been futile.
Specifically, appellant objects to the following:
1a.) In his opening argument to the jury the prosecutor told the jury, "Conjecture or speculation: again this relates to the unanswered questions. Don't try to imagine what happened and what didn't happen. Focus simply on the evidence that you heard in court."
2a.) In his rebuttal argument, the prosecutor told the jury, "In the realm of criminal law, we have a sort of a saying goes something like this in regards to defense attorneys. If the facts are on your side, strongest argument you can make, then you argue the facts. If the facts aren't on your side but the law is, is the second best argument you can make. Argue the law, and when the facts and the law are neither on your side, you argue reasonable doubt because reasonable doubt is a concept that is easily understood but difficult to articulate at times."
3a) Also in his rebuttal argument, the prosecutor told the jury, "Any amount of evidence that leaves you with an abiding conviction that the charge is true is enough to convict. In pretty high profile cases they interview jurors after the verdict comes in -- particularly if it is a not guilty verdict, and you often hear jurors say I believed he did it, but there was that reasonable doubt, but they can't really articulate what it is, and they start with I believe he did it. If you believe it, then that's a binding [sic] conviction."
Appellant argues that all of these comments were improper and misled the jury about the concept of reasonable doubt.
In addition to the foregoing, appellant asserts that the prosecutor made assertions of fact not in evidence. Specifically, appellant objects to the following:
1b.) The prosecutor told the jury that appellant brought his friends to the restaurant in order to intimidate Joel, but Joel never testified that he saw anyone with appellant or in appellant's car, or even that he had seen appellant's car at the restaurant.
2b.) The prosecutor told the jury that it was incredible that Joel would hand over a truck worth over $4000 to satisfy a $200 debt, but there was no testimony about the value of the Expedition.
3b.) The prosecutor told the jury that Velasquez was involved in a pyramid scheme and therefore lacked credibility, but nothing in Velasquez's testimony suggested that he was involved in a pyramid scheme or was attempting to get Joel into a pyramid scheme.
" 'The applicable federal and state standards regarding prosecutorial misconduct are well established. " 'A prosecutor's... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." ' " [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves " ' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " [Citation.]' [Citations.]" (People v. Hill (1998) 17 Cal.4th 800, 819.) Thus, for example, federal constitutional error may be found where a pervasive pattern of misconduct "threatened defendant's right to a fair trial." (Id. at p. 838.)
Concerning the scope of permissible prosecutorial argument, " ' " 'a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.' [Citation.] 'A prosecutor may "vigorously argue his case and is not limited to 'Chesterfieldian politeness' " [citation], and he may "use appropriate epithets...." ' " [Citation.]' [Citation.]" (Hill, supra, 17 Cal.4th at p. 819.)
On the other hand, "[a] prosecutor engages in misconduct by misstating facts or referring to facts not in evidence, but he or she enjoys wide latitude in commenting on the evidence, including urging the jury to make reasonable inferences and deductions therefrom. [Citation.]" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 95.)
Nevertheless, " '[a]s a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion-and on the same ground-the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]' [Citation.]" (Hill, supra, 17 Cal.4th at p. 820.) " 'Because we do not expect the trial court to recognize and correct all possible or arguable misconduct on its own motion [citations], [a] defendant bears the responsibility to seek an admonition if he [or she] believes the prosecutor has overstepped the bounds of proper comment, argument, or inquiry.' " (People v. Wilson (2008) 44 Cal.4th 758, 800.)
"The foregoing, however, is only the general rule. A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure 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." ' [Citations.] Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if 'the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.' [Citations.]" (Hill, supra, 17 Cal.4th at pp. 820-821.)
Appellant takes the position that objections in this case would have been futile.
Alternatively, appellant argues that if the failure to object is not excused by futility, he received ineffective assistance of counsel.
Given that appellant has raised a claim of ineffective assistance of counsel, we will address the merits of appellant's contentions. (See, People v. Williams (1998) 61 Cal.App.4th 649, 657 [addressing the merits of a claim, despite its forfeiture, to preclude ineffective assistance of counsel claim].)
Reasonable Doubt Standard
As to appellant's argument that the prosecutor's comments outlined above in sections 1a, 2a, and 3a misled the jury about the concept of reasonable doubt, we note the following.
" '[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements.' " (Hill, supra, 17 Cal.4th at p. 829.) However, a "prosecutor has wide latitude in describing the deficiencies in opposing counsel's tactics and factual account." (People v. Bemore (2000) 22 Cal.4th 809, 846.)
"In evaluating a claim of prejudicial misconduct based upon a prosecutor's comments to the jury, we decide whether there is a reasonable possibility that the jury construed or applied the prosecutor's comments in an objectionable manner. [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1019.) Further, "we consider how the statement would, or could, have been understood by a reasonable juror in the context of the entire argument. [Citations.]" (People v. Woods (2006) 146 Cal.App.4th 106, 111.) "No misconduct exists if a juror would have taken the statement to state or imply nothing harmful." (Ibid.)
As to comment 1a, appellant argues that the prosecutor was attempting to "straightjacket the jurors' thinking and prevent them from picturing innocent scenarios consistent with the evidence. The prosecutor thus prohibited them from considering how the absence of evidence might leave open possibilities of innocence arousing reasonable doubt."
We disagree with appellant's characterization of the prosecutor's argument. Certainly, reasonable doubt may be based on an absence of evidence. (Johnson v. Louisiana (1972) 406 U.S. 356, 360 [Numerous cases have defined a reasonable doubt as one based on reason, which arises from the evidence or lack of evidence].) Nevertheless, the prosecutor's comment here advised the jury that if they tried but could not determine a fact, or had unanswered questions, they should not speculate. We see no reasonable possibility that the prosecutor's argument would have caused a reasonable juror to not consider innocent scenarios that were consistent with the evidence.
As to comment 2a, which came during the prosecutor's rebuttal argument, appellant argues that the prosecutor improperly told the jury that defense counsel have to resort to arguments about reasonable doubt only when the law and the facts are not on their side, thereby suggesting that "defense argument about reasonable doubt is the last refuge of scoundrels and proof of the defendant's guilt." Appellant asserts that by "telling the jury that [defense] counsel's argument itself revealed that the facts and the law were not on appellant's side, the prosecution undermined the principle of acquittal absent proof beyond a reasonable doubt and appellant's right to the assistance of counsel...."
We are not persuaded that a reasonable juror would have drawn the damaging inference suggested by appellant. Contrary to appellant's claim, the prosecutor did not suggest that a resort to a reasonable doubt argument was the "last refuge of scoundrels and proof" of appellant's guilt. In People v. Breaux (1991) 1 Cal.4th 281 (Breaux), the prosecutor compared defense counsel's closing argument to law school trial tactics where students are taught " 'that if you don't have the law on your side, argue the facts. If you don't have the facts on your side, argue the law. If you don't have either one of those things on your side, try to create some sort of a confusion with regard to the case because any confusion at all is to the benefit of the defense.' " (Id. at p. 305.) The Supreme Court held the comment did not improperly impugn defense counsel's integrity. Rather, "in context, the prosecutor could only have been understood as cautioning the jury to rely on the evidence introduced at trial...." (Id. at p. 306.)
Here, the prosecutor was beginning his rebuttal argument and used the remarks as an introduction to his discussion of the evidence and reasonable doubt standard. "[I]nsofar as the prosecutor's remarks could be understood as a reminder to the jury that it should not be distracted from the relevant evidence and inferences that might properly and logically be drawn therefrom, there was no impropriety." (Breaux, supra, 1 Cal.4th at p. 306.) The challenged remarks were within the wide latitude allowed a prosecutor in describing the deficiencies in opposing counsel's trial tactics and factual account. (People v. Bemore, supra, 22 Cal.4th at p. 846.) The prosecutor's argument was not improper.
As to comment 3a, appellant argues that this comment informed the jury that a belief that a defendant is guilty is necessarily an abiding conviction, and thus necessarily sufficient for conviction, even when the belief is tempered by reasonable doubt. He asserts that by "equating belief with belief beyond a reasonable doubt, the prosecutor urged the jurors to delete the words 'beyond a reasonable doubt' and find appellant guilty upon belief tout court, even if it is a belief based on a mere preponderance of the evidence, or even if it is a weak belief."
Again, we reject appellant's characterization of the prosecutor's comment. Appellant conveniently forgets that between comments 2a and 3a, the prosecutor restated the reasonable doubt standard as "proof that leaves you with an abiding conviction that the charge is true." Again, we see no possibility that a reasonable juror would have understood that the beyond a reasonable doubt standard could be satisfied by just any belief no matter how weak The prosecutor's argument did not tell the jurors that they could disregard the beyond a reasonable doubt standard of proof. Simply put, we do not infer that the jury would have understood these comments to mean that the reasonable doubt standard was somehow diminished.
In sum, we reject appellant's argument that the prosecutor's argument misled the jury about the concept of reasonable doubt.
Assertions of Facts Not in Evidence
As to comments 1b, 2b, and 3b, appellant argues they were not supported by the evidence. We point out that as to comment 2b concerning the value of the Expedition, Heriberto Macedo testified that before the Expedition was taken by appellant it was worth $4500. Therefore, we reject appellant's claim of prosecutorial misconduct as to this comment.
As to comment 1b, we have determined it was an argument that could reasonably be inferred based on the evidence. A prosecutor "enjoys wide latitude in commenting on the evidence, including the reasonable inferences and deductions that can be drawn therefrom. [Citation.]" (People v. Hamilton (2009) 45 Cal.4th 863, 928.)
As to comment 1b regarding appellant bringing his friends along when he went to the restaurant in order to intimidate Joel, appellant testified that when he went to the restaurant "Marylou" and "Johnny" accompanied him. Further, when Marylou testified she said that they did not plan to do anything after going to the restaurant, just get the money and return. A reasonable inference to be drawn from this evidence is that appellant intended to intimidate Joel. The fact that Joel never saw anyone with appellant is irrelevant. Accordingly, the prosecutor's comment was a fair inference drawn from the evidence.
However, as to comment 3b regarding Velasquez being involved in a pyramid scheme we do not believe that there was enough evidence to conclude that Velasquez was involved in a pyramid selling scheme. Thus, the prosecutor was asking the jury to draw an unreasonable inference from the evidence. The argument was technically inaccurate. However, in light of the fact that the jury was instructed that statements made by counsel were not evidence, that they were to decide what were the facts of the case, and were to reject interpretations of the evidence they found to be unreasonable, we find it inconceivable that this inaccuracy was prejudicial in any respect.
" 'The right of counsel to discuss the merits of a case, both as to the law and facts, is very wide, and he [or she] has the right to state fully his [or her] views as to what the evidence shows, and as to the conclusions to be fairly drawn therefrom. The adverse party cannot complain if the reasoning be faulty and the deductions illogical, as such matters are ultimately for the consideration of the jury.' [Citation.] In the argument before the jury, any reasonable inference may be drawn from the evidence, and it is a matter within the discretion of the trial court to determine whether counsel stays within the permissible range of discussion. [Citation.] Assuming that, giving effect to these rules, counsel 'illogically deduced' that a finding [that Velasquez was involved in a pyramid selling scheme] could be inferred from the evidence, at least in the absence of objection, it does not amount to misconduct which has prejudiced defendant's rights." (People v. Eggers (1947) 30 Cal.2d 676, 693; accord, People v. Warren (1988) 45 Cal.3d 471, 485, fn. 1.)
In conclusion, we reject appellant's claims that the prosecutor committed misconduct or find that the one technically inaccurate argument was not prejudicial.
IX. Cumulative Error
Appellant contends that the cumulative effect of all the aforementioned errors deprived him of his constitutional right to due process and a fair trial and compels reversal of his conviction. Respectfully, we disagree.
The combined effects of multiple errors may indeed render a trial fundamentally unfair. (See People v. Cuccia (2002) 97 Cal.App.4th 785, 795.) However, since we have found none of appellant's claims of error meritorious and/or prejudicial, a cumulative error argument cannot be sustained. No serious errors occurred, which whether viewed individually or in combination, could possibly have affected the jury's verdict. (People v. Martinez (2003) 31 Cal.4th 673, 704; People v. Valdez (2004) 32 Cal.4th 73, 128.) Appellant was entitled to a fair trial, not a perfect one. (People v. Bradford, supra, 14 Cal.4th 1005, 1057.).
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P.J., PREMO, J.