P. v. Criton

Filed 3/2/07 P. v. Criton CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Glenn)

----

A jury convicted defendant Leon Roger Criton of residential robbery (Pen. Code,  211 -- count I) and misdemeanor battery on a domestic partner ( 243, subd. (e)(1) -- count II).^[1] However, the jury did not sign and return a verdict on the allegation defendant had a prior serious felony conviction within the meaning of the Three Strikes law ( 667, subds. (b)-(i)), a fact overlooked by the court and counsel at sentencing. After denying probation and a request to strike the strike, the court sentenced defendant to six years in prison: the lower term of three years for count I plus three years for the strike; and one year for count II, to run concurrently.

On appeal, defendant contends the prosecutor committed misconduct when he asked defendant were they lying questions during cross-examination. He also claims misconduct occurred during closing argument when the prosecutor compared defendant to a rat in a trap with motivation to lie in order to avoid conviction of the charged crimes. Because defense counsel did not object to the prosecutors alleged misconduct, defendant contends that he was denied effective assistance of counsel. We requested supplemental briefing in response to our stated intent to strike the three years imposed for the strike alleged in the information but not included in the verdicts returned by the jury.

We shall vacate the sentence and remand for resentencing with directions to strike the three years imposed for the strike, and affirm the judgment as modified.

FACTUAL AND PROCEDURAL BACKGROUND

A. Conflicting Testimony at Trial:

The victim, Lois Johnson, testified she was living with defendant on May 18, 2005, in an apartment on East Sycamore Street in Willows. Johnson had known defendant since 1990 and they had lived together on and off since 1991. Johnson moved to Willows from the Los Angeles area in 2004 after her leg was amputated, and defendant joined her shortly thereafter.

At trial, Johnson testified she received $812 a month in supplemental security income (SSI). She had $123 in her possession the morning of May 18, 2005: one $100 bill, one $20 bill, and three $1 bills. Johnson was sitting in her wheelchair cooking, when defendant approached and demanded money. When Johnson refused to give defendant anything, he grabbed her by the neck, stuck his hand in her pants, and took $20. Johnson described her attempt to fight defendant off. She testified she was unable to scream because he had his hands on her throat. Johnson stated she suffered a scratch on her hand as a result of the incident. She called 911 when defendant went into their bedroom with the $20.

Willows Police Sergeant Carl Walter was dispatched to the scene. Walter heard loud voices coming from inside the apartment before he knocked on the door. After defendant opened the door, Walter observed that defendant was angry and Johnson was in tears seated in her wheelchair.

According to Walter, defendant said he had asked Johnson for some money, and, when she refused, he took the money from her. Defendant explained he threw $100 on the floor and took the $20 bill to buy cigarettes and something to drink. Walter testified defendant demonstrated how he grabbed Johnson by plac[ing] his left-hand on the base of the jaw and throat. Defendant told Walter he reached around with his right hand and pulled the money out from her waistband. Defendant admitted using force to get the money.

Defendant testified at trial that he had been living in Willows with Johnson for approximately nine months. Before moving to Willows, he and Johnson had lived in the city of Compton for 11 years. Defendant described their long relationship as good until Johnson lost her leg.

Turning to the May 18, 2005 incident, defendant testified he got up when he heard another voice coming from the kitchen and found a friend had come by to give Johnson some money. Defendant asked Johnson for the $60 that he had loaned her three days before. When Johnson refused to give him this amount, defendant asked her for $20, saying he would get the rest from Kathy, a friend for whom he did yard work. Defendant stated that as he tried to get past Johnson in the kitchen, she reached up from her wheelchair, grabbed him, ripped off his shirt, and scratched his shoulder. Defendant did not stop Johnson from calling the police after the incident.

Defendant also testified regarding his conversation with Sergeant Walter. He told the officer he didnt do nothing to Johnson. Defendant denied telling Walter he grabbed Johnsons throat and reached in her waistband for the money. Defendant claimed he grabbed her only after she grabbed him. Defendant also denied telling Walter he took $20 from Johnson to buy cigarettes.

When questioned about his prior convictions at trial, defendant testified he was convicted of robbery in 1971.

B. Alleged Misconduct During Cross-Examination:

Defendant bases his first claim of misconduct on a portion of the prosecutors cross-examination of defendant:

Q. Okay. You heard Officer Walter testify here?

A. Yes.

Q. And he testified that you told him that you and the victim had argued over money. Did you hear him testify to that?

A. Yes.

Q. Okay. And that the victim had - - that you wanted to get some money from the victim so you could buy some cigarettes and something to drink?

A. I didnt tell him that.

Q. You didnt tell him that?

A. No.

Q. So if he wrote that down in his report, thats false?

A. Yes, it is. I was in the bed. [] . . . []

Q. Okay. Now you heard Sergeant Walter testify that you told him that after you took the money from the victim you went to lie down in the bedroom?

A. I didnt tell him that.

Q. Pardon me, sir?

A. I didnt tell him that I took no money from her.

Q. So if Sergeant Walter said that you told him that you took money from the victim, then Sergeant Walter here is not being truthful?

A. Thats right. (Italics added.)

The cross-examination continued:

Q. You didnt tell Sergeant Walter anything about taking Ms. Johnsons money?

A. No, I did not.

C. Alleged Misconduct During Closing Argument:

Defendants second claim of misconduct focuses on the prosecutors comments in closing argument:

When we look at any crime, and its kind of like on TV. Because we think of TV, we watch TV. We could also ask well, why didnt we try to get some fingerprints off the money? Why didnt we bring a DOJ crime team in from Sacramento to do forensics? The reason why, ladies and gentlemen, is we have to use common sense.

The ladies [sic] been robbed. She calls 911 and shes a liar because she forgot to tell Sergeant Walter that during the struggle she broke a couple of her nails? Do we hold it against the victim that she forgot to tell Sergeant Walter it didnt occur to her to use the words where the defendant says youre giving me money, bitch. Some people dont like to use bad words like that. Counsel for the defendant argues well, the defendant didnt run. So what. Maybe hes decided after all these years you can run but you cant hide. Its all going to come down to who are we going to believe? Who are we going to believe, the victim and Sergeant Walter or do we believe the 5 time convicted felon?

I calculated today if a person was facing serious charges had he been arrested on May 18 of 2005 so hes been in custody around what, 97 days, I would submit that its he who has a motive to lie here. Think about that. Who has motive to lie? What do you think a defendant thinks about when hes getting ready for trial? Hes like a rat in a trap. Hes thinking how can I escape, what can I say, or is he saying boy, I sure wish I hadnt told Sergeant Walter the truth. I might not be here today. (Italics added.)

DISCUSSION

I

The principal issue on appeal is whether the prosecutor committed misconduct on two separate occasions in the course of trial. The first incident of alleged misconduct occurred during cross-examination when the prosecutor asked defendant if he thought Sergeant Walters testimony was false or untruthful. The second incident occurred in closing argument when the prosecutor described defendant as a rat in a trap with motivation to lie since he did not want to be found guilty of the charges. We reject defendants claim of prosecutorial misconduct for reasons we shall explain.^[2]

A. Cross-Examination:

When a prosecutors intemperate behavior is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, the federal Constitution is violated. Prosecutorial misconduct that falls short of rendering the trial fundamentally unfair may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury. [Citation.] To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury. [Citation.] (People v. Panah (2005) 35 Cal.4th 395, 462 (Panah).)

Defendant argues the prosecutor improperly and repeatedly asked defendant were they lying questions during cross-examination that prejudicially forced defendant to repeatedly call Sergeant Walter a liar. Although defendant concedes that were they lying questions have been found appropriate under certain circumstances (see People v. Foster (2003) 111 Cal.App.4th 379, 385), he contends this case does not fall within any of the recognized exceptions. Defendant suggests the officer could have been mistaken about the details of the incident because he was going back and forth, first questioning Johnson, then questioning defendant.

Neither party cites the recent California Supreme Court opinion, People v. Chatman (2006) 38 Cal.4th 344 (Chatman), which addresses the issue of prosecutorial misconduct in the context of were they lying questions. In that case, the prosecutor repeatedly asked the defendant if he thought two witnesses he personally knew had reason to lie in their testimony. (Id. at pp. 378-379.) In addressing the defendants claim that the were they lying questions were either argumentative, irrelevant, or speculative, the court held that such questions do not constitute misconduct where a defendant was a percipient witness to the events at issue. (Id. at pp. 381, 382.) The court explained that were they lying questions are proper if a defendant has personal knowledge whether other witnesses who describe those events are testifying truthfully and accurately. As a result, he might also be able to provide insight on whether witnesses whose testimony differs from his own are intentionally lying or are merely mistaken. When, as here, the defendant knows the other witnesses well, he might know of reasons those witnesses might lie. Any of this testimony could be relevant to the credibility of both the defendant and the other witnesses. There is no reason to categorically exclude all such questions. (Id. at p. 382.) Chatman has clarified that were they lying questions do not by themselves constitute misconduct.

Here, defendants testimony conflicted with the testimony of Sergeant Walter regarding statements made by defendant. There is no question that the defendant was a percipient witness to the statements at issue. The prosecutor asked defendant if he thought Sergeant Walter was not being truthful in a portion of his testimony in order to clarify what took place that day between the defendant and the victim. Because Johnsons testimony was consistent with Sergeant Walters testimony, but in sharp contrast with defendants testimony, the were they lying questions were an appropriate way to assist the jury in determining the credibility of the witnesses.

B. Closing Argument:

Defendant also contends that the prosecutor committed misconduct in closing argument. He maintains the prosecutors comment that defendant was like a rat in a trap with a motive to lie violated his constitutional rights under both state and federal law.

Referring to testimony as lies is an acceptable practice so long as the prosecutor argues inferences based on the evidence and not on the prosecutors personal belief. [Citation.] Closing argument may be vigorous and may include opprobrious epithets when they are reasonably warranted by the evidence. (People v. Sandoval (1992) 4 Cal.4th 155, 180; see People v. Mora (1956) 139 Cal.App.2d 266, 272-273.) Moreover, [i]n attacking the credibility of defense witnesses, a single reference to a witness as having perjured himself, based on an analysis of the evidence before the jury, may be unobjectionable. [Citation.] (People v. Ellis (1966) 65 Cal.2d 529, 540 (Ellis).) Where the prosecutor repeatedly refers to the defendant as a perjurer, however, the argument constitutes misconduct. (Id. at pp. 540-541.)

Having reviewed the context of the challenged language, we cannot say the prosecutors brief remark was so egregious that it denied defendant due process. Nor did the prosecutors conduct rise to the level of being fairly classified as reprehensive or deceptive. (Panah, supra, 35 Cal.4th at p. 462.) The prosecutions closing argument did not make the comment its central focus, and there are no repeated references to a rat in a trap. (Ellis, supra, 65 Cal.2d at pp. 540-541.) We therefore conclude the prosecutors comment did not constitute misconduct. Because we conclude there was no misconduct, we need not address the question whether defense counsel was ineffective for failing to object to the alleged misconduct at trial.

II

Sentencing on the Strike

The Three Strikes law states that the prosecution shall plead and prove each prior serious/violent felony alleged in the information. ( 667, subds. (f)(1) & (g), 1170.12, subds. (d)(1) & (e).) Fairly construed, sections 667 and 1170.12 require enhanced sentencing once a prior violent felony conviction has been pled and found to be true, unless the court dismisses the prior conviction finding pursuant to section 1385, subdivision (a). (People v. Morales (2003) 106 Cal.App.4th 445, 456; see also 1025, subd. (b) & 1158.)^[3] The fact-finders silence operates as an acquittal of a prior conviction allegation. (People v. Huffman (1967) 248 Cal.App.2d 260, 261; see also People v. Molina (1977) 74 Cal.App.3d 544, 550.)

In our review of the record, we discovered that although the prosecution alleged the 1971 robbery as a strike in the information, defendant declined to bifurcate and stipulated to the prior conviction at trial. The court instructed the jury on the strike, however, the jury did not sign and return a true finding on that special allegation and the court discharged the jury. Thereafter, the court denied defendants request to exercise its discretion to strike the strike, and used it to double defendants sentence from three to six years. Neither the Attorney General nor appellate defense counsel noticed the omission in preparing their briefs on appeal.

In supplemental briefing, the parties agree that the jury failed to make a true finding on the strike alleged in the information. Defendant also agrees with the view we must remand for resentencing with directions that the trial court strike the three-year sentence imposed on the strike.

The Attorney General acknowledges remand is proper, but argues, the trial court should be directed to impanel a new jury to determine the truth of the prior-conviction allegation. . . . Relying on People v. Saunders (1993) 5 Cal.4th 580 (Saunders), the Attorney General contends defendants failure to object to the discharge of the jury should be treated as a waiver of any [Penal Code] section 1025 and section 1164 rights to have the same jury decide the charged offense and the prior conviction allegation . . . .^[4]Saunders holds that a defendant who expressly withdraws a previous waiver of jury trial on his prior convictions may forfeit any objection to the empanelment of a different jury to determine the truth of the prior conviction allegations. (Saunders, supra, at p. 591.) This case differs from Saunders because: (1) defendant did not seek bifurcation or otherwise waive jury trial on the strike allegation; and (2) the prosecution introduced evidence at trial on the issue of defendants prior convictions. (Compare, id. at p. 591.) Because the court discharged the jury before verifying that it had received a verdict on the prior ( 1164) and the jurys failure to make a true finding operates as an acquittal on the prior serious/violent felony allegation (Huffman, supra, 248 Cal.App.2d at p. 261), we conclude the three-year sentence arising from defendants prior conviction must be stricken.

DISPOSITION

The sentence is vacated and the matter is remanded for resentencing with directions that the trial court enter an acquittal on the prior serious/violent felony allegation alleged in the special verdict. ( 667, subds. (b)-(i).) As modified, the judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

RAYE , Acting P.J.

BUTZ , J.

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^[1] Hereafter, undesignated statutory references are to the Penal Code.

^[2] We address the merits of defendants claim of prosecutorial misconduct, in spite of his admitted failure to object at trial, to resolve in this appeal defendants alternative claim of ineffective assistance of counsel.

^[3] Section 1025, subdivision (b) provides: Except as provided in subdivision (c), the question of whether or not the defendant has suffered the prior conviction shall be tried by the jury that tries the issue upon the plea of not guilty, or in the case of a plea of guilty or nolo contendere, by a jury impaneled for that purpose, or by the court if a jury is waived.

Section 1158 states: Whenever the fact of a previous conviction of another offense is charged in an accusatory pleading, and the defendant is found guilty of the offense with which he is charged, the jury, or the judge if a jury trial is waived, must unless the answer of the defendant admits such previous conviction, find whether or not he has suffered such previous conviction. The verdict or finding upon the charge of previous conviction may be: We (or I) find the charge of previous conviction true or We (or I) find the charge of previous conviction not true, according as the jury or the judge find that the defendant has or has not suffered such conviction. If more than one previous conviction is charged a separate finding must be made as to each.

^[4]Section 1164, subdivision (b), guards against premature discharge of the jury. It provides that, [n]o jury shall be discharged until the court has verified on the record that the jury has either reached a verdict or has formally declared its inability to reach a verdict on all issues before it, including, but not limited to, the degree of the crime or crimes charged, and the truth of any alleged prior conviction whether in the same proceeding or in a bifurcated proceeding.