Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD217714, Stephanie Sontag, Judge.
IRION, J.
A jury convicted Tatjana Annette Sebro of one count of robbery. (Pen. Code, § 211.) The trial court sentenced Sebro to three years' formal probation and 150 days' work furlough.
Sebro contends (1) that the trial court erred in admitting hearsay evidence regarding an eyewitness's identification and, in doing so, also violated the confrontation clause of the Sixth Amendment to the United States Constitution; and (2) that the prosecutor committed several instances of misconduct. We conclude that Sebro's state law evidentiary challenge has merit, and that one instance of prosecutorial misconduct is cognizable on appeal, namely the prosecutor's incorrect factual statement in closing argument that a certain eyewitness had identified Sebro in a photographic lineup. However, we conclude that Sebro has not established reversible prejudice as a result of the error. Accordingly, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On November 18, 2008, at around 9:00 p.m., Melinda Hanes was walking to her car after leaving her workplace on the University of California, San Diego campus. As Hanes crossed an intersection, a robber grabbed her shoulders and pushed her to the ground. While struggling with Hanes, the robber called to an associate across the street for help in taking Hanes's backpack. The second robber crossed the street to help, and they both started kicking Hanes, who was screaming loudly. The robbers took Hanes's backpack from her and ran.
Several good samaritans arrived to help. Blake Stech heard Hanes's screams and ran down from his apartment. He intercepted the robbers as they ran across the street with Hanes's backpack, punched at one of them, and then recovered the backpack. Nicholas Sanchez and Aizamarie Abelon pulled up in a car while Stech was struggling with the robbers. Sanchez got out of the car and briefly held back the arms of one of the robbers, while Abelon watched from inside the car. The robbers then ran to get into a waiting car while yet another good samaritan - Michael Denise - tried to stop them from leaving. As the two robbers drove away in a car driven by a third person, Stech recorded the car's license plate number.
Police determined that the vehicle used in the robbery was a rental car that was rented from Becker Auto Rental on September 17, 2008, by Sebro and Shawniqua Arms-Wilson, accompanied by a third woman, Shiree Ford. Arms-Wilson used her credit card for the rental and was the primary person liable for the car on the rental agreement. Sebro was an approved driver. The rental was extended by several cash payments made in person over the next few months by Sebro, who was sometimes accompanied by Arms-Wilson or Ford.
Using information that Arms-Wilson and Sebro had rented the car, the police put together two photographic lineups containing six photos each, referred to as a "six pack." One lineup contained Sebro's photo, and the other contained Arms-Wilson's photo.
On November 21, 2008, police showed the robbery victim, Hanes, one of the photographic lineups. According to Hanes' testimony at trial, in "five seconds" she was able to make an identification of Sebro as the second robber. The police did not show Hanes the second photographic lineup containing Arms-Wilson's photograph because, according to the police detective investigating the case, Hanes had told police after the incident that one of the robbers was a male, and Hanes had already identified a female, Sebro, in the first photographic lineup.
The police also showed photographic lineups to Stech, Abelon, Sanchez and Denise. Stech identified both Sebro and Arms-Wilson. Police showed Abelon a photographic lineup containing Sebro (but not one containing Arms-Wilson). Abelon identified Sebro, saying, "This is a maybe." Sanchez was unable to identify anyone in the lineup containing Sebro's photo, and from the lineup containing Arms-Wilson's photo, Sanchez identified someone other than Arms-Wilson. Denise was not able to able to identify Arms-Wilson in the lineup containing her photo, but the jury heard testimony from a police detective that Denise made an identification of someone in the photographic lineup containing Sebro's photo.
Due to the vague nature of the questioning at trial, the police detective specified only that Denise identified someone in the photographic lineup containing Sebro's photo. She did not indicated whether the person he identified was Sebro or was a different individual.
Arms-Wilson was arrested on December 3, 2008, and Sebro was arrested on February 26, 2009, at Ford's house. Both women were charged with robbery and were tried together as codefendants. The jury heard testimony about each of the eyewitnesses' reactions to viewing the photographic lineups. The jury also heard live trial testimony from Hanes, Stech and Abelon. As we will explain, Hanes and Stech identified Sebro and Arms-Williams during trial, but Abelon did not.
When Hanes testified at trial, she identified Sebro and Arms-Wilson in the courtroom as "fitting the description and very likely to be the two suspects, " stating that "they look familiar." Specifically, Hanes recognized Sebro as the first robber and Arms-Wilson as the second robber. However, casting some doubt on Hanes's in-court identification, the jury also heard testimony that (1) Hanes was not able to identify either of the attackers at the preliminary hearings; and (2) during both her initial description to police and during her preliminary hearing testimony, Hanes stated that the first robber was a Hispanic male.
Sebro and Arms-Wilson are both Black females.
At trial, Stech identified Sebro as the robber from whom he took the backpack, and he identified Arms-Williams as the other robber. The jury also heard testimony that Stech identified Arms-Williams and Sebro during his preliminary hearing testimony, and that when initially describing the suspects to police, Stech said that the robber from whom he recovered the backpack was of an unknown gender and was African-American, and the second robber was female.
Abelon testified at trial that neither Sebro nor Arms-Wilson looked familiar. The jury heard testimony that (1) Abelon got a good view of only one of the robbers, which she described as an African-American female; and (2) Abelon was not able to identify Sebro during the preliminary hearing.
Neither Sanchez nor Denise testified at trial. However, Sanchez's preliminary hearing testimony, in which he was unable to identify Sebro and Arms-Wilson, was read to the jury. With respect to Denise, the trial court admitted testimony from a police detective that Denise was "able to identify" someone in the photographic lineup that contained Sebro's photograph, and that Denise circled and initialed the person he identified.
Both Arms-Wilson and Sebro testified in their own defense. Arms-Wilson presented an alibi defense, with evidence that she was with a friend around the time of the robbery. Sebro denied committing the robbery, but she did not specifically recall what she was doing on November 18, 2008, when the robbery occurred. Sebro testified that Arms-Wilson rented the car for her and her former girlfriend, Ford, but Arms-Wilson never drove the car. According to Sebro, she broke up with Ford sometime in November 2008, left the rental car with Ford, went to Oceanside for an extended time around the Thanksgiving holiday, and did not speak to Ford again until the day that she was arrested at Ford's house. Other witnesses for the defense included a psychologist, who testified on the unreliability of eyewitness identification.
The jury found Sebro guilty of robbery, and Arms-Wilson not guilty.
II
DISCUSSION
A. The Trial Court Erred in Admitting Hearsay Testimony of Denise's Identification of Someone in the Photographic Lineup
Sebro's first argument is that the trial court erred in admitting hearsay testimony from a police detective about Denise's identification of someone in the photographic lineup containing Sebro's photograph. Specifically, according to Sebro, the evidence constituted inadmissible hearsay. The challenged testimony of the police detective was as follows:
"Q. Did you have a chance to show Mr. Denise a copy of that photo lineup with the six-pack with Ms. Sebro in it?
"A. Yes.
"Q. Was he able to identify?
"[DEFENSE COUNSEL]: Objection; hearsay.
"THE COURT: Overruled.
"THE WITNESS: Yes.
"Q. And did he circle and initial the person he identified?
"A. Yes."
The Attorney General concedes, and we concur, that the police detective's testimony constituted inadmissible hearsay. " 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) Unless it comes within an exception, it is inadmissible. (Id., subd. (b).) For the purposes of the hearsay rule, " '[s]tatement' means (a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression." (Id., § 225, italics added.) Sebro correctly points out that it "is well settled that the act pointing to a photograph in response to a question is assertive conduct" and thus qualifies as a statement for purposes of the hearsay rule. (See, e.g., People v. Jurado (2006) 38 Cal.4th 72, 129 ["a nod of the head in response to a question calling for a yes-or-no answer, or a gesture pointing to a particular person when asked to identify a perpetrator, are examples of assertive conduct"]; People v. Mayfield (1972) 23 Cal.App.3d 236, 240 [testimony that a witness not appearing at trial had identified the defendant in a photograph was inadmissible hearsay].) Accordingly, Denise's out-of-court identification of a person in the photographic lineup by circling and initialing a photo constituted assertive conduct subject to the hearsay rule. No exception to the hearsay rule applies, and the admission of the evidence by the trial court was error.
As Sebro points out, Evidence Code section 1238 provides:
Although conceding the error, the Attorney General argues that the error was not prejudicial and does not warrant reversal. According to the Attorney General (1) the state law standard for prejudice set forth in People v. Watson (1956) 46 Cal.2d 818 (Watson) applies here; (2) under that standard, it is not reasonably probable Sebro would have obtained a more favorable result absent the error; and (3) even if the standard for federal constitutional error applies as set forth in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), the erroneous admission of the evidence was harmless beyond a reasonable doubt.
Sebro contends that the admission of the testimony about Denise's identification of someone in the photographic lineup violated her rights under the confrontation clause of the Sixth Amendment to the United States Constitution, and that the Chapman standard for assessing prejudice applies. According to Sebro, the identification of a suspect in a photographic lineup is a testimonial statement, and thus, pursuant to Crawford v. Washington (2004) 541 U.S. 36, 68, the admission of the out-of-court statement violated her right to confrontation under the Sixth Amendment. (Id. at pp. 53-54 [the confrontation clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination"].)
The Supreme Court has indicated that statements made during police interrogations are testimonial where "the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Davis v. Washington (2006) 547 U.S. 813, 822.) It is evident from the testimony that the police detective showed the witnesses photographic lineups for the purpose of identifying the perpetrators of the robbery so that they could be prosecuted. The record contains no evidence that Denise was unavailable to testify or that Sebro had a prior opportunity for cross-examination of Denise. Therefore, Denise's out-of-court identification was testimonial, and the trial court violated Sebro's right to confrontation by admitting the identification when Denise was not present to testify at trial. The standard for assessing prejudice in Chapman, supra, 386 U.S. 18, 24, accordingly applies here. (See People v. Cage (2007) 40 Cal.4th 965, 991-992 [applying Chapman standard in evaluating the prejudice resulting from erroneous admission of a testimonial out-of-court statement in violation of the confrontation clause].)
Regarding Denise's availability to testify, the prosecutor explained to defense counsel and the court during trial that she would not be calling Denise to testify because, although she had planned to fly Denise from Virginia, she learned on the first day of trial call that "he wouldn't be able to fly in." Sebro points to no information in the record that would satisfy the standards for Denise's unavailability set forth in Evidence Code section 240.
The Attorney General contends that Sebro has not preserved her confrontation clause argument for appeal because defense counsel did not interpose an objection on the ground of the confrontation clause during trial. We disagree. In People v. Gutierrez (2009) 45 Cal.4th 789, our Supreme Court specifically ruled that a defendant who objected to an out-of-court statement on hearsay grounds did not forfeit his right on appeal to argue that the erroneous admission of the evidence also violated his right to confrontation under the Sixth Amendment. As Gutierrez explained, because " 'the new arguments do not invoke facts or legal standards different from those the trial court was asked to apply, but merely assert that the trial court's act or omission, in addition to being wrong for reasons actually presented to that court, had the legal consequence of violating the Constitution[, ]... defendant's new constitutional arguments are not forfeited on appeal.' " (Id. at p. 809.) Gutierrez proceeded to analyze the confrontation clause issues after determining that the out-of-court statement at issue was inadmissible hearsay. (Id. at pp. 812-813.)
Sebro does not attempt to argue that, standing alone, the erroneous admission of evidence that Denise identified someone in the photographic lineup satisfies the Chapman standard for prejudice. Instead, Sebro advances a theory of cumulative prejudice, which we will evaluate after considering all of Sebro's appellate arguments. However, were we to consider, in isolation, the trial court's error in admitting evidence that Denise identified someone in the photographic lineup, we would agree with the Attorney General that the error, standing alone, is not prejudicial under the Chapman standard. As the Attorney General points out, there was no indication in the police detective's testimony as to whom Denise identified when shown the photographic lineup. The jury did not hear testimony that Denise identified Sebro as one of the individuals who robbed Hanes. Therefore, the testimony was irrelevant to the issue of Sebro's guilt and the erroneous admission of the evidence, standing alone, was harmless beyond a reasonable doubt.
B. Contention That the Prosecutor Violated Sebro's Right to Due Process by Releasing Sanchez from Subpoena Without Communicating with Defense Counsel
Sebro's second argument is that the prosecutor committed misconduct, in violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady), when she failed to provide information to defense counsel that would have helped insure that Sanchez was under subpoena and available to testify at trial.
1. Applicable Facts
The background facts were explained at length by the prosecutor on the record in connection with defense counsel's request to have Sanchez's preliminary hearing testimony read to the jury.
According to the prosecutor, trial was originally set to go forward on June 11, 2009. At that time she provided a potential witness list to defense counsel, which included Sanchez, and she also placed Sanchez under subpoena. After the trial date was continued, the prosecutor learned on June 25, 2009, that Sanchez would be leaving the country. On the afternoon of June 30, 2009, counsel for Arms-Wilson e mailed the prosecutor, indicating that she assumed the prosecutor would cooperate in obtaining a witness if the prosecutor did not plan to call a particular witness that was already subject to the prosecution's subpoena.
According to Sebro's appellate briefing, defense counsel were working together to obtain the necessary defense witnesses.
According to the prosecutor, before she read the June 30th e mail, she released Sanchez from the subpoena due to the fact that he was going to be out of the country. The prosecutor represented that she then read and responded to the June 30th e mail. She replied to both defense counsel and told them that (1) the original witness list was accurate only for the prior trial date; (2) if defense counsel gave her the names of witnesses they planned to call, she would tell them the current status of those witnesses; and (3) she would not agree to "coordinate witnesses, " but "if they were under subpoena and available, " she would not release witnesses from their subpoenas even if she did not plan to call them at trial. Defense counsel did not respond with inquiries about particular witnesses.
On July 7, 2009, the prosecutor filed her trial brief and did not have Sanchez or Abelon listed as witnesses. When counsel for Arms-Wilson realized that those two witnesses would not be present at trial, she sent an investigator to try to subpoena them. The investigator learned that Sanchez and Abelon were moving out of the country but would be doing a final walkthrough of their apartment on July 10. While trial was underway, defense counsel's investigator was able to serve Abelon with a subpoena at the walkthrough of the apartment, but Sanchez had already left the country.
2. Applicable Legal Standards
Brady establishes that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (Brady, supra, 373 U.S. at p. 87.) "When exculpatory evidence involves an eyewitness to the crime, what must be disclosed is not just the witness's identity 'but all pertinent information which might assist the defense to locate him.' " (People v. Robinson (1995) 31 Cal.App.4th 494, 499 (Robinson), quoting Eleazer v. Superior Court (1970) 1 Cal.3d 847, 851; see also In re Littlefield (1993) 5 Cal.4th 122, 132.) "[A]lthough the prosecution need not produce the... witness, it cannot withhold information which might assist the defense's efforts to locate and produce him." (Eleazer, at p. 851, fn. omitted.) In a related rule, "[l]aw enforcement agencies have a duty, under the due process clause of the Fourteenth Amendment, to preserve evidence 'that might be expected to play a significant role in the suspect's defense.' " (People v. Roybal (1998) 19 Cal.4th 481, 509, citing California v. Trombetta (1984) 467 U.S. 479, 488.)
The general rule is that despite the prosecution's constitutional duty to provide all pertinent information that may help the defense to locate an exculpatory eyewitness (Robinson, supra, 31 Cal.App.4th at p. 499), with the exception of police informants "it is not the duty of the prosecution to produce or to keep track of witnesses the defendant may later wish to have testify." (People v. Rance (1980) 106 Cal.App.3d 245, 253, italics added.) With respect to witnesses favorable to the defense, due process "requires only that the police or prosecution refrain from conduct which makes the noninformant material witness unavailable." (People v. Hernandez (1978) 84 Cal.App.3d 408, 411.) The prosecution may not "wrongfully deprive[] an accused of the opportunity to secure the presence of a material witness." (Bellizzi v. Superior Court (1974) 12 Cal.3d 33, 36 (Bellizzi).)
3. The Prosecutor Did Not Commit Brady Misconduct
We now apply these legal principles to the instant situation. At the outset, we note that our analysis is necessarily based on the prosecutor's own description of the communications between counsel. Defense counsel could have countered the prosecutor's description of events or could have asked the trial court to place the relevant e mails in the record, but they did not do so. Based on the description of the e mail exchange contained in the record, the prosecutor gave defense counsel a fair opportunity to ensure that Sanchez was present at trial. The prosecutor specifically invited both of the defense counsel to contact her to obtain information about any specific witness they were interested in. Defense counsel had ample opportunity to do so before trial began more than a week later. Therefore, in this instance, the prosecutor did not "wrongfully deprive[] an accused of the opportunity to secure the presence of a material witness." (Bellizzi, supra, 12 Cal.3d at p. 36.) Although, in the spirit of cooperation and full disclosure, it would have been better had the prosecutor responded to defense counsel's e mail by putting defense counsel on notice of Sanchez's pending international travel and her release of his trial subpoena, we conclude that the prosecutor's lack of communication on this issue did not rise to the level of misconduct or a violation of Sebro's due process rights.
Sebro also makes a cursory argument that the prosecutor's conduct concerning Sanchez deprived her of her right to compulsory process under the Sixth Amendment. To establish a violation of the right to compulsory process by the prosecution "a defendant must demonstrate misconduct, " among other things. (In re Martin (1987) 44 Cal.3d 1, 31.) As we have determined that the prosecutor did not wrongfully deprive Sebro of the right to secure the presence of Sanchez at trial in violation of the right to due process, we also conclude that the prosecutor did not engage in misconduct sufficient to cause a violation of Sebro's right to compulsory process.
C. Alleged Prosecutorial Misconduct During Closing Argument
Sebro's final argument on appeal is that the prosecutor committed misconduct during closing argument by making a wide range of statements that Sebro contends were false or improper.
Prosecutorial misconduct exists " 'under state law only if it involves " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' " (People v. Earp (1999) 20 Cal.4th 826, 858.) Further, a defendant's federal due process rights are violated when prosecutor's improper remarks " ' " 'infect[] the trial with unfairness, ' " ' " making it fundamentally unfair. (Ibid.) A showing of bad faith on the part of the prosecutor is not required to establish misconduct. (People v. Hill (1998) 17 Cal.4th 800, 822 (Hill).) However, " '[t]o preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition....' " (Earp, at p. 858.) As an exception to this 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." ' " (Hill, at p. 820.) Further, "in the absence of prejudice to the fairness of a trial, prosecutor misconduct will not trigger reversal." (People v. Bolton (1979) 23 Cal.3d 208, 214.) " '[I]n cases where jurors are improperly exposed to certain factual matters, the error is usually tested under the standard set out in [Watson, supra, ] 46 Cal.2d 818, 836'...." (People v. Bordelon (2008) 162 Cal.App.4th 1311, 1323-1324 (Bordelon), citation omitted.)
We now turn to a discussion of each of the statements during the prosecutor's closing argument that Sebro contends amount to prosecutorial misconduct.
1. The Prosecutor'sStatement About Sanchez's Eyewitness Identification
During closing argument, the prosecutor stated that she was going to "talk about the identifications made by Melinda Hanes, Blake Stech, Aizamarie Abelon, Nicholas Sanchez, and Michael Denise." In the course of her discussion, she made the following statement about Sanchez:
"So you heard the preliminary examination testimony from Mr. Nicholas Sanchez, and in that testimony he did correctly identify Ms. Sebro as looking familiar to him when he conducted that photographic lineup. However, during that preliminary examination, he also said that he had a bad memory. He was also able to coincidentally pick out the same person as three other people."
Counsel for Sebro objected that those facts were not in evidence, and the trial court sustained the objection. After reviewing Sanchez's preliminary hearing transcript and determining that Sanchez did not identify Sebro in the photographic lineup or at the preliminary hearing, the trial court gave a curative instruction to the jury. The trial court instructed, "I wanted to tell you that the testimony of Mr. Nicholas Sanchez was read to you. Mr. Sanchez did not identify Ms. Sebro as someone involved in this crime. So that evidence is not before you in any form.... [H]e did not identify either of the defendants in this matter."
At the beginning of the next day of trial, the trial court gave a second curative instruction to the jury for the purpose of striking the objectionable remarks. "Ladies and gentlemen, yesterday you heard an argument that Mr. Sanchez identified Ms. Sebro as a person involved in the crime. There was no evidence presented to support that claim. Mr. Sanchez was not able to identify either defendant as being involved in the crime. Therefore, any remarks about identification must be stricken, are stricken by me, and you must not consider them for any purpose."
The Attorney General concedes that the prosecutor incorrectly stated that Sanchez had identified Sebro. Under the applicable legal standards, this factual misstatement to jury amounted to prosecutorial misconduct. "Although prosecutors have wide latitude to draw inferences from the evidence presented at trial, mischaracterizing the evidence is misconduct." (Hill, supra, 17 Cal.4th at p. 823.) " '[S]tatements of facts not in evidence by the prosecuting attorney in [her] argument to the jury constitute misconduct.' " (People v. Adcox (1988) 47 Cal.3d 207, 236 (Adcox).)
The Attorney General argues that due to the curative instructions that we have cited above, as well as statements made by defense counsel and the prosecutor addressing the factual error, any prosecutorial misconduct was not prejudicial. As the Attorney General points out, counsel for Sebro stated in her closing argument, "I want to reiterate and make sure that it's very clear, when Sanchez was presented this lineup he was unable to identify." Further, in the beginning of her rebuttal argument, the prosecutor stated, "First of all, ladies and gentlemen, I did want to apologize for making my mistake yesterday when I said that Mr. Nicholas Sanchez had identified anybody. He did not identify anybody. Just disregard that part of the argument."
During her discussion with the trial court about her misstatement, the prosecutor appeared to be confused about the facts. She initially represented to the trial court that the police detective had testified that Sanchez had correctly identified Sebro in the photographic lineup, and that she possessed a photographic lineup - not admitted into evidence - in which Sanchez had circled Sebro as one of the robbers. After consulting her notes, the prosecutor stated, "I apologize.... I think I... misspoke when I said Nicholas Sanchez."
As we have explained, Sebro makes an argument that the cumulative effect of all of the errors in this case was prejudicial. However, were we to consider the prosecutor's misstatement about Sanchez's identification in isolation, we would determine that because of the curative instructions and the clarifying statements made during closing argument by both the prosecutor and defense counsel, there is not a reasonable probability that the verdict would have been different in the absence of the misstatement. (Bordelon, supra, 162 Cal.App.4th at pp. 1323-1324 [Watson standard for assessing prejudice generally applies when jury is exposed to incorrect factual argument].)
2. The Prosecutor'sStatements About Hanes's Eyewitness Identification
Sebro contends that the prosecutor committed misconduct during closing argument by falsely stating three facts about Hanes's identification of Sebro. We discuss each of the three facts in turn.
a. Inability toIdentify at the Preliminary Hearing
First, the prosecutor twice stated during closing argument that Hanes was not asked during her preliminary hearing to make an in-court identification of Sebro. As the Attorney General concedes, this was a misstatement. The unambiguous trial testimony was that Hanes was not able to identify either Sebro or Arms-Wilson at the preliminary hearings.
In her first statement on the issue, the prosecutor said, "[A]t the preliminary examination, nobody asked [Hanes] if there was anybody in the courtroom that looked familiar to you. She's asked during trial if anybody in the courtroom looked familiar to you. She stated yeah, both of the defendants looked familiar to her." In the prosecutor's second statement she said, "At the preliminary examination, again, no one asks [Hanes] if anybody in the courtroom looks familiar, but in trial she does look around and she does say that Ms. Sebro does look familiar to her."
As the Attorney General points out, however, defense counsel did not object to the statement during the prosecutor's closing argument and did not ask for the jury to be admonished. We find no basis to conclude that an objection or an admonition would have been futile. Accordingly, Sebro may not, on appeal, argue the prosecutor's misstatement constituted misconduct. (Hill, supra, 17 Cal.4th at p. 820.)
We reject Sebro's argument that this case is comparable to those extreme cases in which a prosecutor's misconduct is so pervasive throughout closing argument that an objection to each instance would be futile. (See, e.g., People v. Kirkes (1952) 39 Cal.2d 719, 726 ["Rather than consisting of a single statement interjected in the heat of debate, they were interspersed throughout the closing argument in such manner that their cumulative effect was devastating. Repeated objections might well have served to impress upon the jury the damaging force of the challenged assertions."].)
We note also that any prejudice caused by the prosecutor's misstatement was mitigated by a clarification made by counsel for Sebro during closing argument. She stated, "Ms. Hanes was unable to identify Ms. Sebro at the preliminary hearing. I don't want this jury to be misled to believe that at the preliminary hearing she wasn't asked and wasn't identified. She was asked, 'Can you identify somebody[?'] at the preliminary hearing[.] And she testified that no, she was not able to identify Ms. Sebro at the preliminary hearing."
b. Reason for Not Showing Hanes the Second Photographic Lineup
During closing argument, the prosecutor stated that the reason Hanes was not shown the photographic lineup containing Arms-Wilson's photo after she had already identified Sebro in a photographic lineup was that "she was only able to describe one person. She described it as potentially a Hispanic male, matching Ms. Sebro's description, and so she wasn't shown a photographic lineup." The Attorney General concedes that this statement was factually wrong. In fact, the police detective testified that Hanes was not shown the photographic lineup containing Arms-Wilson because Hanes had stated that the other robber was a male, and she had already identified a female in the photographic lineup containing Sebro.
However, defense counsel did not object to this instance of misconduct, and an objection and an admonition to the jury would not have been futile. Accordingly, the issue is not preserved for appeal. (Hill, supra, 17 Cal.4th at p. 820.)
Further, were we to assess the prejudice to Sebro from the prosecutor's misstatement, we would note that counsel for Arms-Wilson corrected the misstatement during her closing argument. She stated, "[I]n her closing the prosecution argued that Ms. Hanes was shown one lineup and she wasn't shown the other lineup because she couldn't describe a second suspect. That's not true. She was able to describe two suspects. She was only shown one lineup, though, and it was decided that after she picked one person out of that first lineup, the detective felt that other description did not fit Ms. Arms-Wilson so it wasn't helpful to show her that one."
c. "Immediate" Identification of Sebro in the Photographic Lineup
The prosecutor also commented during closing argument that when viewing the photographic lineup, "Ms. Hanes points to Ms. Sebro immediately, immediately points to her and says, 'This person's facial shape, skin color and facial features are consistent.' " Sebro contends that this statement was false because the police detective testified that Hanes's identification of Sebro was not immediate. Specifically, the police detective stated that the length of time it took Hanes to make the identification was "[n]ot too long, but it wasn't immediate." After reviewing her report, the police detective further testified that "[i]f it's immediate or there's a specific time, I'll note that [in the report], but it wasn't immediate."
The Attorney General argues that the prosecutor's characterization of the identification as "immediate[]" was a fair interpretation of the evidence. We agree. Although, the police detective stated that the identification was not immediate, Hanes testified that it took her only five seconds to identify Sebro in the photographic lineup. A prosecutor is entitled to make a " ' " 'fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom' " ' " (Hill, supra, 17 Cal.4th at p. 819) and "to assert [her] interpretation of what the evidence showed" (People v. Navarette (2003) 30 Cal.4th 458, 513). It was a fair comment and a reasonable interpretation of Hanes's testimony for the prosecutor to say that Hanes "immediately" pointed out Sebro in the photographic lineup.
Further, because defense counsel did not interpose an objection to the prosecutor's statement, the issue of prosecutorial misconduct has been forfeited on appeal. (Hill, supra, 17 Cal.4th at p. 820.)
3. The Prosecutor's Statement About Abelon's Eyewitness Identification
Sebro contends that the prosecutor made a factual misstatement in closing argument when describing Abelon's identification of Sebro. Specifically, the prosecutor said, "You also heard from Ms. Aizamarie Abelon. She properly identifies Ms. Sebro as looking familiar to her from the incident. However, she only saw her for about three seconds...." Sebro contends that the prosecutor made a factual misstatement because, when Abelon was asked whether she could identify Sebro in the courtroom during trial, Abelon testified that Sebro did not look familiar.
However, as the Attorney General points out, Abelon did identify Sebro as looking "familiar" in the photographic lineup. During her trial testimony, Abelon stated that she was not "certain" when identifying Sebro in the photographic lineup, but the following exchange occurred during the prosecutor's examination of Abelon:
"Q: But the person that you picked out, that person was familiar to you?
"A. As I said, vaguely. I was not certain about it, but if there was some kind of familiarity in regards to that situation, then I went ahead and picked it.
"Q. So that person that you picked out was somewhat familiar to you?
"A. Yes."
We conclude that based on this evidence, the prosecutor was justified in commenting to the jury that Abelon "properly identifie[d] Ms. Sebro as looking familiar to her from the incident."
In addition, because defense counsel did not object to the statement, the appellate claim of error is forfeited. (Hill, supra, 17 Cal.4th at p. 820.)
4. Prosecutor's Statement About Denise's Eyewitness Identification
As we have noted, during closing argument, the prosecutor stated that she was "going to talk about the identifications made by Melinda Hanes, Blake Stech, Aizamarie Abelon, Nicholas Sanchez, and Michael Denise." After discussing Hanes's and Stech's identification of both defendants and while an image of the photographic lineup circled and initialed by Hanes continued to be displayed to the jury, the prosecutor began to discuss Denise. However, she was quickly cut off by an objection for counsel for Sebro, which the trial court sustained.
"[PROSECTOR]: Michael Denise
"[DEFENSE COUNSEL]: Objection; not in evidence.
"THE COURT: Sustained.
"... [¶]
"[PROSECUTOR]: During the examination, you heard Detective Petty testify that Michael Denise did in fact
"[DEFENSE COUNSEL]: Objection; facts not in evidence.
"THE COURT: Sustained, and the exhibit's not in evidence either."
In commenting that "the exhibit's not in evidence either, " the trial court apparently assumed that the initialed and circled photographic lineup on display to the jury at the time was the photographic lineup shown to Denise, rather than the lineup shown to Hanes.
The prosecutor proceeded to discuss Abelon's identification of Sebro, and then summarized that "[s]o far, you've had quite a few people identifying Ms. Sebro."
The day's proceedings ended with the prosecutor's closing argument. Counsel for Sebro moved for a mistrial based on the prosecutor's misstatements about Sanchez and Denise. As we have explained, the trial court gave a curative instruction regarding Sanchez. However, with respect to Denise, the trial court stated that it would take the issue of a mistrial or a curative instruction under submission until it had reviewed the relevant portions of the trial transcript. The next morning, after reviewing the trial transcript, the trial court stated:
"There was testimony, and I don't know whether I made a mistake or not about allowing that in, but there will be a better court that will decide[, ] that Mr. Denise was able to identify somebody, but it doesn't say who.... [I]t says he was given a photo lineup with the six-pack with Ms. Sebro in it. Was he able to identify? Yes. So it doesn't really say he was able to identify Ms. Sebro. I don't find that you arguing that was in bad faith, but don't argue it again in rebuttal, and I'm not going to give [a curative] instruction to the jury."
Sebro contends that the prosecutor committed misconduct because she misstated that Denise had identified Sebro. Sebro's characterization of the prosecutor's argument is not supported by the record. According to the reporter's transcript, the prosecutor never directly stated that Denise had identified Sebro in the photographic lineup. Instead, all that the prosecutor was able to say concerning Denise before being cut off with an objection was "you heard Detective Petty testify that Michael Denise did in fact...." This was not a misstatement.
Focusing on the discussion that occurred between the trial court and counsel following the prosecutor's closing argument, Sebro argues that "everyone at trial including the prosecutor herself agreed and understood that the jury was told that Denise identified appellant." We reject the argument because it is not supported by the reporter's transcript, which indicates that the prosecutor was cut off before she said anything specific about who Denise identified in the photographic lineup. The prosecutor may have intended to say that Denise identified Sebro, but the record indicates that she was not able to finish her sentence. Further, we reject as unsupported speculation Sebro's suggestion that the prosecutor said something more specific about Denise that was not recorded by the court reporter because "the court reporter was unable to record two people speaking at once."
Sebro contends that the prosecutor made a second misstatement about Denise's identification during closing argument when addressing the testimony of the defense's expert on eyewitness identification. The prosecutor argued to the jury that the expert witness "hasn't had a chance to talk to Melinda Hanes, Blake Stech, Aizamarie Abelon, Michael Denise or Nicholas Sanchez. He doesn't know if any of those factors affected the way they recognized.... He doesn't know how much time passed before they were able to identify that photo lineup." We conclude that the prosecutor did not make a misstatement about Denise during this comment. The prosecutor stated only that Denise had been able to "identify, " not that he had been able to identify Sebro.
In our view, the prosecutor's statements about Denise came very close to crossing the line, and were potentially misleading, but because the prosecutor did not in fact make any false statements, we conclude that she did not commit misconduct. Although we do not condone prosecutorial statements that could mislead the jury, in this case the evidence supported a statement that Denise made an identification of someone in the photographic lineup, and the prosecutor's argument never went beyond that established fact.
We also reject Sebro's cursory argument that the prosecutor violated the Sixth Amendment's confrontation clause by making "reference during closing argument to facts outside the record" in discussing Denise. As we have explained, the prosecutor stated no more than the facts in the record, i.e., that Denise had identified someone in the photographic lineup.
Further, even were we to find misconduct, we would conclude that any prejudice created by the prosecutor's statements would be mitigated by the clarification provided by counsel for Sebro in her closing argument. She explained to the jury, "There was a statement by the prosecution in her argument that there was also another identification of this person, Michael Denise. That hasn't been talked a lot about, he wasn't a witness in this case, but there were some of the things that came in. Mr. Denise identified someone, but the evidence has not shown who was identified. So that is not a positive identification of Ms. Sebro."
5. The Prosecutor's Comments on Sebro's Prearrest Silence
During trial, a police detective testified that Ford called her on December 3, 2008, after Arms-Wilson was arrested. The police detective testified that (1) she told Ford that she was investigating Sebro for committing robbery; and (2) Sebro did not try to contact the police detective between December 3, 2008, and her February 26, 2009 arrest date.
During closing argument, the prosecutor commented on the fact that Sebro did not attempt to contact the police. She stated, "Is it a coincidence that on December 3rd, 2008, when Ms. Arms-Wilson was arrested, Ms. Shiree Ford calls [the police detective]? [The police detective] tells her that Ms. Sebro is under investigation for committing robbery. However, Ms. Sebro never contacts [the police detective] to find out about this investigation." Counsel for Sebro objected, citing the Fifth Amendment to the United States Constitution. The trial court sustained the objection.
Sebro argues that the prosecutor's comments constituted misconduct on three grounds: (1) the prosecutor stated facts that were not in evidence; (2) the remarks violated Sebro's right to confrontation under the Sixth Amendment; and (3) the remarks violated Sebro's Fifth Amendment right against self-incrimination. We consider these arguments in turn.
First, Sebro argues that the prosecutor stated facts that were not in evidence because the prosecutor "insinuat[ed] that Ford told [Sebro] about the investigation" and "the natural assumption the jury would take from the prosecutor's statement was that the prosecutor had some undisclosed knowledge that Ford had in fact spoken with [Sebro]." As we have explained, " 'statements of facts not in evidence by the prosecuting attorney in [her] argument to the jury constitute misconduct.' " (Adcox, supra, 47 Cal.3d at p. 236.) However, on this point we do not agree that the prosecutor stated facts not in evidence. "Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial." (People v. Lucas (1995) 12 Cal.4th 415, 473.) Here, the prosecutor could permissibly advance the inference that because Ford had been Sebro's girlfriend, and because Sebro was arrested at Ford's house, it is likely that Ford had spoken with Sebro at some point and informed her of the police detective's statement.
Second, Sebro argues that "the prosecutor's reference to facts outside the evidence had the additional legal consequence of violating [her] Sixth Amendment right to confront witnesses" in that she was not able to examine Ford about whether she told Sebro about the police detective's statement. As we have explained, we conclude that the prosecutor did not state facts outside of the evidence. Accordingly, we reject Sebro's confrontation clause argument.
Third, Sebro contends that the prosecutor violated her Fifth Amendment right against self-incrimination by commenting on her prearrest silence. Sebro's legal argument is based on People v. Waldie (2009) 173 Cal.App.4th 358 (Waldie). In Waldie, a police detective testified that before the defendant was arrested he did not participate in a police interview, despite a dozen phone calls to him, and that after the defendant's final promise to call back, he never did. (Id. at p. 364.) In closing argument, the prosecutor commented that the defendant did not cooperate with the police investigation. (Ibid.)
In assessing the defendant's argument that the prosecutor's comment violated his due process and Fifth Amendment rights, Waldie explained that in Jenkins v. Anderson (1980) 447 U.S. 231 (Jenkins), the Supreme Court " 'held that the use of prearrest silence to impeach a defendant's credibility violates neither the Fifth Amendment nor the due process clause of the Fourteenth Amendment.' " (Waldie, supra, 173 Cal.App.4th at p. 365, italics added.) However, as Waldie pointed out, the Supreme Court "has yet to rule on the constitutionality of the use of prearrest, pre-Miranda silence as substantive evidence of guilt." (Ibid).
Jenkins stated, "Our decision today does not consider whether or under what circumstances prearrest silence may be protected by the Fifth Amendment. We simply do not reach that issue because the rule of Raffel [v. United States (1926) 271 U.S. 494] clearly permits impeachment even if the prearrest silence were held to be an invocation of the Fifth Amendment right to remain silent." (Jenkins, supra, 447 U.S. at p. 236, fn. 2.)
Waldie noted a split in the federal courts on the issue, but sided with those federal circuits that have held the Fifth Amendment to be applicable to a defendant's silence in the face of prearrest questioning by police. (Waldie, supra, 173 Cal.App.4th at pp. 365-366.) As Waldie stated, " '[W]e believe "that application of the privilege is not limited to persons in custody or charged with a crime; it may also be asserted by a suspect who is questioned during the investigation of a crime." ' " (Id. at p. 366, quoting Combs v. Coyle (6th Cir. 2000) 205 F.3d 269, 283.)
Waldie therefore concluded that the defendant's Fifth Amendment rights had been violated, but expressed the caveat that the same result might not obtain in a different factual situation. "We conclude the evidence and argument violated the Fifth Amendment because defendant was deprived of any meaningful right to refuse to talk to the police. If the police are allowed to call a suspect persistently and then offer his unwillingness to respond as evidence of guilt, a defendant would never be able to claim the protection of freedom of incrimination. A different result might be indicated if the detective had called defendant only one time or a few times. But testimony about repeated phone calls and apparent evasiveness by defendant is constitutionally infirm." (Waldie, supra, 173 Cal.App.4th at p. 366.)
Sebro urges us to follow Waldie and conclude that the prosecutor violated her Fifth Amendment rights by commenting that Sebro had not contacted the police. We find Waldie to be distinguishable. Here, in contrast to Waldie, there was no testimony or argument that the police detective ever indicated to Ford that she wanted to question Sebro. Accordingly, there is no factual foundation in this case for us to find that prosecutor impermissibly commented on Sebro's invocation of her Fifth Amendment right to remain silent in light of police questioning.
The police detective testified that she told Ford that she was investigating Sebro, not that she wanted Sebro for questioning or wanted Sebro tocontacther for that purpose. In the portion of the prosecutor's closing statement at issue here, the prosecutor said that Sebro was "under investigation" and "Ms. Sebro never contacts [the police detective] to find out about this investigation...."
As Waldie noted, the federal courts have not taken a uniform position on whether the Fifth Amendment right against self-incrimination applies to prearrest silence when that silence is used as evidence of guilt. (Waldie, supra, 173 Cal.App.4th at pp. 365-366.) We take no position on Waldie's resolution of that issue. Instead, we conclude that, even assuming Waldie was correctly decided, this case does not involve the type of prearrest silence that would fall under Waldie's holding, because Sebro was not sought for questioning by the police prior to her arrest.
D. Sebro Has Not Established That the Cumulative Effect of the Trial Court Error and Prosecutorial Misconduct Was Unduly Prejudicial
Having addressed each of Sebro's appellate arguments, we now consider whether reversal is warranted due to the cumulative prejudicial effect of the trial court's evidentiary error and the single instance of prosecutorial misconduct that we have found to be cognizable on appeal.
As we have explained, the trial court error in this case consisted of the erroneous introduction of hearsay evidence concerning Denise's identification of someone in the photographic lineup containing Sebro's photo. The sole instance of prosecutorial misconduct that is cognizable on appeal consisted of the incorrect factual statements that Sanchez identified Sebro in the photographic lineup. We have explained why each of these items, individually, would not have warranted a reversal of the judgment under the Watson standard. (Watson, supra, 46 Cal.2d at p. 836.) For those same reasons, we conclude that when the two errors are viewed cumulatively, they are not unduly prejudicial, and it is not reasonably probable that Sebro would have obtained a more favorable result had they not occurred.
Sebro argues that "[c]umulative error is assessed under the federal standard for evaluating prejudice where any one of the errors is a violation of the federal [C]onstitution." Because we have not found any federal constitutional errors, we reject Sebro's contention that the federal standard set forth in Chapman, supra, 386 U.S. 18, 24, should apply.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, Acting P. J., O'ROURKE, J.
"Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying and:
"(a) The statement is an identification of a party or another as a person who participated in a crime or other occurrence;
"(b) The statement was made at a time when the crime or other occurrence was fresh in the witness' memory; and
"(c) The evidence of the statement is offered after the witness testifies that he made the identification and that it was a true reflection of his opinion at that time."
However, this provision is inapplicable because Denise did not testify at trial.
Regarding Sebro's lack of a prior opportunity to cross-examine Denise about his identification of someone in the photographic lineup, the transcript of the preliminary hearing testimony shows that Denise was not questioned by the prosecutor about being shown the photographic lineup, and thus the issue was not within the scope of cross-examination.