Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles, Super. Ct. No. BA271422, Michael E. Pastor, Judge
Mark S. Givins, under appointment by the Court of Appeal, for Defendant and Appellant, Ray A. Green.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant, Raynetta Green.
Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Jonathan J. Kline, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Appellants Ray A. Young and Raynetta Green, brother and sister, were convicted by jury for crimes that they committed in the course of a home invasion robbery on August 24, 2004. The jury convicted Young of one count first degree home invasion robbery with personal use of a firearm (Pen. Code, §§ 211, 213, subd. (a)(1)(A), 12022.53, subd. (b)), one count first degree burglary with personal use of a firearm (§§ 459, 12022, subd. (a)(1)), one count false imprisonment by violence (§ 236), one count carjacking (§ 215, subd. (a)), one count assault with a firearm (§ 245, subd. (a)(2)), and one count assault with a deadly weapon other than a firearm (§ 245, subd. (a)(1)).
All statutory references are to this code unless otherwise stated.
The jury convicted Green of one count first degree home invasion robbery with personal use of a firearm (§§ 211, 213, subd. (a)(1)(A), 12022.53, subd. (b)), one count first degree burglary with personal use of a firearm, one count false imprisonment by violence (§ 236), and one count assault with a firearm (§ 245, subd. (a)(2).
Young admitted that he suffered a prior serious felony conviction in 1995 for lewd or lascivious acts with a child under age 14 (§ 288, subd. (a)), that he suffered a conviction and prior prison commitment in 2004 for possession of marijuana for sale (Health & Saf. Code, § 11359), and that he did not remain free of prison for a 5-year period (§ 667.5, subd. (b).)
The trial court sentenced Young to 33 years in state prison, based on an upper term of 9 years for the home invasion robbery count doubled for the prior strike (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)), a consecutive 5-year enhancement for the prior serious felony (§ 667, subd. (a)(1)), and a 10-year enhancement for the personal use of a firearm (§ 12022.53, subd. (b)). The trial court stayed execution of Young's sentence as to all other counts pursuant to section 654. The trial court sentenced Green to 16 years in state prison based on a midterm sentence of 6 years for the home invasion robbery (§ 213. subd. (a)(1)(A)) and a 10-year enhancement for the personal use of a firearm (§ 12022.53, subd. (b)). The court stayed execution of Green's sentence as to all other counts pursuant to section 654.
Young contends that the prosecutor committed misconduct and error under Griffin v. California (1965) 380 U.S. 609, and that the trial court abused its discretion by denying his motion to strike his prior serious felony conviction. Green contends it was error to instruct jurors that they could infer consciousness of guilt from her willfully false pretrial statement (CALJIC 2.03). She also contends that there was insufficient evidence to sustain her conviction for assault with a firearm. We reject each contention and affirm the judgments against both Young and Green.
FACTS
On August 24, 2004, Thelma Crooks stepped out of her home to empty the garbage. Green approached. Green said she had been beaten up by her boyfriend and asked to use Crooks' phone. Crooks told Green to use the phone booth around the corner. Green opened her purse and took out a gun. Green backed Crooks into her house, pointing the gun at Crooks. A few steps into the house, Green told Crooks to get on her knees and then her stomach. Crooks complied. Green spoke into her cell phone stating, "She's in position."
Young and Ferrari Busby then entered the house and beat Crooks. Both Young and Busby had guns. Young got his gun from Green when he entered. Young tried to put duct tape on Crooks and she resisted. Young slapped Crooks with a closed hand and said, "Bitch, I ought to kill you." He hit Crooks on the top of her head with a gun. Crooks required six stitches to her right eye and ten stitches to her head. Busby kicked Crooks in the back. Young dragged Crooks by the arm to a bedroom, resulting in bruises to her arm and knee. Young and Busby tied Crooks up with electrical cords and Young removed 23 items of jewelry from Crooks.
Busby pled guilty to charges against him and is not a party to this appeal.
Young and Busby demanded the combination to a safe that was in Crooks' home. The safe belonged to Crooks' friend, Clayborn Hall. Crooks told Young and Busby she did not know the combination. Busby said they would kill her if she did not give them the combination. Crooks' daughter-in-law telephoned during the robbery, and Busby threatened to kill Crooks if she gave her daughter-in-law any sign. Crooks offered to call Clayborn Hall to get the combination to the safe, and Busby dialed the telephone for her. When Hall would not give Crooks the combination, Young held a steak knife to Crooks' throat and said, "I oughta cut the bitch's throat." Green said, "Please don't do that."
Young and Busby either rolled or dragged the safe out of the house. Crooks freed herself from the electrical chords and ran outside. She saw Young driving away in her car, with Green inside and the safe hanging out of the back door. She saw Busby walking.
The safe and car were later recovered. The parties stipulated that DNA found on a cell phone and hat in the car did not match Green. Four fingerprints were lifted from the crime scene, one of which matched Busby's.
In a photo line up on September 7, 2004, Crooks identified Young stating, "I remember this person's entire mean face." About 10 days later Crooks identified Busby in a photo line up. On September 22, 2004, police officers arrested Young at the home of his girlfriend, Roshanda Clay. They recovered much of Crooks' jewelry, some of which Young was wearing.
Young made a recorded statement to police detectives. It was played to the jury. He initially denied any knowledge of the robbery and then admitted involvement as a lookout. Later, he admitted entering the house to help carry out the safe. He said that a woman named "Diamond" helped with the robbery. Young provided his home address to police officers. The officers went to that address and found it to be the home of Young's mother (Sheila King) and his two sisters (Green and Lynetta King). At the house, officers discovered a purse matching the purse of the female robber as described in detail by Crooks. Green acknowledged that the purse was hers. On September 23, 2004, Crooks identified Green in a photo lineup as the female robber. Police arrested Green and seized her purse and cell phone.
Green made a statement to police that she did not know anything about a robbery. She stated that on August 24 she was home all day sleeping and had no appointments. She also said she could recall that date because it was the birthday of her friend, Roshanda King. She said, "they have nothing that I hurt nobody." Officers had not told her that anyone had been hurt in the robbery.
At trial, Young offered no defense evidence. Green testified and offered the testimony of three alibi witnesses: her mother (Sheila King), her sister (Lynetta King) and a neighbor (Burnett Burlee). Green testified that on August 24 she was home with her mother and sister, except that she spent some time at the neighbor's doing laundry and using the computer, and she went to a club that night. Green's sister testified that on August 24 Green was home during the day in her pajamas, doing laundry and studying and did not leave the house. Green's mother testified Green was home went across the street to do laundry and play computer games, and went to a club at night. Green's neighbor testified that on August 24, Green babysat his son from about 8:00 a.m. to about 4:30 p.m. and that Green was allowed free access to his house and computer anytime. None of these alibi witnesses had come forward prior to trial. In Green's pretrial interview with police, she did not mention babysitting or washing clothes at a neighbor's house.
DISCUSSION
Young's Claim of Prosecutorial Misconduct
Young argues that the prosecutor committed misconduct by asking jurors to imagine themselves in the victim's situation, thereby appealing to their passion and prejudice. Young objects to prosecutorial statements that "[y]our face is in the mattress with your hands tied behind your back, and just start praying. Don't try to defend yourself," and, "[i]f this happens to someone you know and you love, that is terrible," among others. Young waived his contention. He did not object at trial or timely request a curative instruction. (People v. Ochoa (1998) 19 Cal.4th 353, 427.)
Young's alternative ineffective assistance of counsel claim is without merit. Although counsel did not object, this did not prejudice the defense. It is not reasonably likely that the jury construed any of the complained-of remarks in an objectionable fashion. Even if the remarks were misconduct, it is not reasonably likely that a result more favorable to Young would have been reached in the absence of the complained of remarks.
A prosecutor's conduct violates the federal Constitution if 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. Here, there was no pattern of egregiousness and the prosecutor's remarks did not undermine the fairness of the trial. 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. (People v Carter (2005) 36 Cal.4th 1215, 1263.) That standard is also not met here.
"[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Samayoa (1997) 15 Cal.4th 795, 841.) We view the remarks in context. (People v. Kegler (1987) 197 Cal.App.3d 72, 91.)
Personalization of the evidence in closing argument rises to the level of misconduct when it is an appeal to the sympathy and passions of the jury by invitation "to depart from their duty to view the evidence objectively." (People v. Fields (1983) 35 Cal.3d 329, 362.) In Fields, the prosecutor appealed to the jurors' passion and prejudice, over defense objection, by asking them to identify with the murder victim: "'You are either a virgin, or you have had very minimal sexual activity in your lifetime. . . . [¶] . . . [¶] . . . The defendant threatens to kill you unless you give him the money. You are now naked and tied to the bed rails of the defendant's bed.'" "'Defendant shoots you on the side . . . .'" "'Do you wonder about heaven, about God? You know there is no escape. . . . [H]e has to make sure you are dead, and he hits you with an object . . . . And it takes 10 or 15 minutes for you to die. Blood meanwhile spatters on your face.'" (Id. at pp. 361-362.) The only apparent purpose of the remarks was an appeal to passion and sympathy for the victim. The argument was misconduct, but did not require reversal because there was "no reasonable possibility that the prosecutor's appeal to the jurors'sympathy for the victim affected the verdict rendered." (Id. at p. 363.)
Similarly, in People v. Pensinger (1991) 52 Cal.3d 1210, the prosecutor improperly argued, "'Suppose instead of being Vickie Melander's kid this had happened to one of your children.'" (Id. at p. 1250) The conviction was affirmed because there was no reasonable possibility that a result more favorable to defendant would have been reached if the jury had been admonished to disregard the statement. (Id. at pp. 1250-1251.)
In our case, none of the prosecutor's remarks appealed to the passions or prejudice of the jury, and there is no reasonable likelihood that the jury construed the remarks in an objectionable fashion. In one of the complained-of remarks, the prosecutor argued, "A reasonable person put in [Crooks'] shoes, and God help us it never happens to one of us, might just pray to God. Your face is in the mattress with your hands tied behind your back, and just start praying. . . . Don't try to defend yourself. Do nothing. Tell them whatever they want, take whatever they want, and get out, and never worry about fighting back, standing up for yourself. And never worry about the possibility of having to come into court and look this man in the eye and look that woman in the eye and say, 'You are the ones who did it.'" Later, the prosecutor concluded, "Ms. Crooks is tough and she is courageous. She didn't bury her head in the mattress I was showing you with blood on it. She didn't pray to God. She may have, but that is not all she did. She thought long and hard about the role that she was going to play later on when it came time to facing this man, Mr. Young, and this woman, Ms. Green. This woman is tough." These statements are similar to those made in People v. Fields, supra, 35 Cal.3d 329, but viewed in the context of the trial they do not carry the same invitation to abandon objectivity and decide the case based upon passion and prejudice. The prosecutor used the argument to emphasize Crooks' presence of mind during the course of the robbery and thus her credibility as an eyewitness. The argument also explained Crooks'sometimes harsh and angry testimony by reminding the jury of her traumatic experience.
In another remark, the prosecutor explained Crooks' clear recollection of specific jewelry items by stating, ". . . it is not as though Ms. Crooks came in here and said I showed her some photographs of some jewelry . . . and said, 'Do you recognize that?'" He continued, "Here we have a photograph of her beforehand wearing all of these things, so we know they are hers and they are very distinctive. I mean the rings, the earrings, the medallion. All of these things are unique and very precious to her, if you would remember, and she knows because it's her hobby. 'That's mine. This is mine.' [¶] Those of you who have a collection of some sort may be able to relate. 'These are things that are mine.' Mr. Young had them on." The personalization was minimal and was not an appeal to passion or prejudice.
In another remark, the prosecutor sought to undermine the credibility of Green's alibi witnesses by emphasizing the unlikelihood that "these people are [recalling] what they ate for lunch a month before the arrest when they had no reason to remember that particular day. [¶] It is like as though I would ask juror 9, 'You know, where did you get that jacket, that nice leather jacket?' And unless the juror seated in seat 9 got that as a Christmas present or as a gift for a birthday, he is not going to remember, 'I got this on, you know, September 4th of 2001.'" The remark was a proper comment on credibility of witnesses by reference to common experience of the jurors. Further, it was directed at Green's witnesses and could not reasonably have impacted the verdict against Young.
The prosecutor argued that if Green's alibi witnesses really knew her whereabouts on the day of the robbery, they would have come forward before trial. The prosecutor illustrated the point with another reference to common experience. "Do you believe her alibis? [¶] Here we are a year and almost three months later. We are in court, and they have never come forward to the preliminary hearing to tell the judge, to tell the detective, to tell the LAPD, 'You have got the wrong person.' [¶] . . . But if someone you knew, or if somebody you knew to be innocent was in jail, you had the key, you are the alibi, would you sit on the sidelines for a year and three months and keep this information to yourself? 'My daughter is in custody because of a crime she didn't commit. I'm an alibi.'" The argument was not misconduct, and cold not have impacted the verdict against Young
The prosecutor also invited jurors to consider their common experience in determining whether there was great bodily injury: ". . . This is great bodily injury. When you look at this, I think great bodily injury is really in the eye of the beholder. If this happens to someone that you know and you love, that is terrible. . . . [¶] . . . Having your eye swelled up to that point, having the stitches above your eye and on your head, and having to undergo that sort of pain and that sort of scarring and the resulting medical problems. Is that something that you consider great bodily injury?" The remarks are not fairly viewed as an invitation to the jurors to abandon their objective role.
"To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements." (People v. Frye (1998) 18 Cal.4th 894, 970.) We infer no misconduct from the prosecutor's closing argument in this case.
Young's Claim of Griffin Error
Young contends that the prosecutor twice commented on Young's exercise of his Fifth Amendment privilege against self incrimination. (Griffin v. California, supra, 380 U.S. 609.) We reject the contention. The contention was waived when Young did not object or request a curative instruction. (People v. Ochoa, supra 19 Cal.4th at p. 427.)
If properly before us, the contention would have no merit. In closing argument, the prosecutor pointed out that Green had incriminated herself. The argument was in no way linked to Young or his decision not to testify. Green's trial testimony damaged her own defense, because she contradicted her earlier statements to police. The prosecutor commented on this stating, "And lastly, as it related to Ms. Green, I wanted to talk about what we call the privilege against self-incrimination. We all have it. It means that no one can force you to testify against yourself. No one can even comment on or draw any inference from your choice to remain silent. If I have a trial against anyone, they have that absolute right. I'm silent on it. I can't say anything about them sitting there and not presenting any evidence. [¶] . . . Ms. Green made the decision and the choice to get up out of her chair and to talk to you about her explanation about what happened that day. There is a reason they call it the privilege against self-incrimination. It might help you, and it might hurt you. And in this case, I submit to you that it hurt Ms. Green." The comment was made in the portion of the argument that was directed solely at Green and the prosecutor expressly stated that he was referring to Green. It is not reasonably likely that this comment could have been understood to refer to Young's failure to testify. (People v. Clair (1992) 2 Cal.4th 629, 663.)
The prosecutor also commented on the credibility of Young's pretrial interview with police that was played to the jury. In that interview, Young named "Diamond" as the female involved in the robbery. If believed, this would tend to exonerate Young's sister, Green. The prosecutor urged the jury to discredit the statement, arguing "We cannot rely on Mr. Young to tell us who was there because he has lied in other ways, and he is not going to give up his sister." This remark cannot reasonably be viewed as a comment on Young's failure to testify at trial.
Young's Motion to Strike Prior Conviction
Young assigns error to the trial court's refusal to strike his prior conviction for violation of section 288, subdivision (a). (People v. Superior Court (Romero) (1996)13 Cal.4th 497, 504.) We disagree.
Young argues that the facts underlying his prior conviction were not egregious and that it was remote in time, occurring 11 years before these crimes. We review refusal to dismiss an alleged prior at the time of sentencing for abuse of discretion. (Romero, supra, 13 Cal.4th 504.) In exercising its discretion to dismiss, the court considers the nature and circumstances of prior felony convictions. (People v. Williams (1998) 17 Cal.4th 148, 161.)In our case, the trial court made the required factual inquiry into Young's background and was well within its discretion to conclude, as it did, that Young fits squarely within the spirit of the Three Strikes law.
Young suffered juvenile adjudications and upon reaching age 18, suffered the 1995 conviction for violation of section 288, subdivision (a). He received probation for that crime, but violated and was sent to prison. He admits that after release he suffered a conviction for possession of marijuana for sale (Health & Saf. Code, § 11359), and was re-incarcerated. About one month after being paroled, he committed the current crimes. In Young's taped interview with police he demonstrated a callousness and criminal mentality that supports the trial court's opinion that Young is beyond rehabilitation. Denial of his motion to strike was not an abuse of discretion.
Green's Claim of Instructional Error Consciousness of Guilt
Over Green's objection, the trial court gave CALJIC 2.03, instructing the jury that it could infer consciousness of guilt from a defendant's willfully false statement about the charged crimes, "based upon the tape of Mr. Young and any statement that may have been made by Ms. Green during her inquiry." The court also instructed that the inference alone was not sufficient to prove guilt. Green contends that there was insufficient evidence to support the instruction and that it lessened the prosecutor's burden of proof in violation of her constitutional right to a fair trial.
False statements of a defendant at the time of arrest are admissible to show consciousness of guilt. (People v. Kimble (1988) 44 Cal.3d 480, 497.) Where a defendant gives inconsistent and contradictory statements to police to minimize involvement in a crime, CALJIC 2.03 is appropriate. (People v. Stitely (2005) 35 Cal.4th 514, 555.)
Substantial evidence that Green made false statements in her pretrial police interview supported the instruction in this case. Green contradicted her own statements at trial. In her pretrial interview, Green told investigators that she was asleep at home all day on the day of the robbery. At trial, Green offered testimony that she was in and out of her home on the day of the robbery, doing laundry and using the computer at the neighbor's house. In the pretrial interview Green also told detectives that she remembered August 24, 2004 because it was the birthday of her friend Roshanda King. At trial, Green said her friend's name was Roshanda Forby, that they were no longer friends, that she was not sure where Forby lived and that she would not be able to contact Forby. A reasonable jury could conclude she was fabricating in the police interview.
Green cites People v. Rubio (1977) 71 Cal.App.3d 757 (disapproved on other grounds in People v. Freeman (1978) 22 Cal.3d 434, 438),in which it was error to give 2.03 when defendant's trial testimony was consistent with his pretrial statement. (Rubio, at p. 769.) The California Supreme Court has rejected the argument that a defendant's pretrial statement is only admissible if falsity is proved by his or her own contradictory testimony. (People v. Kimble, supra 44 Cal.3d 480, 496.) Even if Rubio were good law, it would not control because Green's pretrial statement was inconsistent with her testimony at trial, and there was evidence from which the jury could infer that Green prefabricated her statement to police.
Sufficiency of Evidence to convict Green of Assault With Firearm
Green contends that her conviction for assault with a firearm (§ 245, subd. (a)(2)) is not supported by the evidence because it was not proven that the gun was loaded. The prosecution presented sufficient circumstantial evidence of present ability to inflict violent injury to sustain the conviction.
Assault with a firearm requires present ability to inflict a violent injury. (People v. Valdez (1985) 174 Cal.App.3d 103, 110-111.) Merely pointing an unloaded gun at a person in a threatening manner is insufficient. (Id. at p. 111.) However, the fact that a gun is loaded may be inferred from circumstantial evidence. "[A] defendant's statements and behavior while making an armed threat against a victim may warrant a jury's finding the weapon was loaded." (People v. Rodriguez 1999) 20 Cal.4th 1, 12.)
We review the record in the light most favorable to the judgment to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 562.) Substantial evidence does support the conviction. The statements of Green and her accomplices during the course of the robbery impliedly asserted that the gun was loaded. Green backed Crooks into the house and forced her to the floor while pointing the gun at Crooks' chest as if it were loaded. Young entered and threatened to kill Crooks while he was holding the same gun. A rational trier of fact could infer from these circumstances that the gun was loaded, and the evidence is sufficient to sustain the conviction.
For all of the foregoing reasons, the judgments against Young and Green are affirmed.
We concur: GILBERT, P.J., YEGAN, J.