P. v. Hernandez
Filed 7/29/13 P. v. Hernandez CA6
Opinion on remand from Supreme Court
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
JACOB TOWNLEY HERNANDEZ,
Defendant and
Appellant.
H031992
(Santa Cruz
County
Super. Ct.
No. F12934)
This case
returns to us on remand from the California Supreme Court in
1095 (Hernandez). This court had found error in the superior
court's refusal to permit trial counsel to show his client, defendant Jacob
Townley Hernandez (Townley), a sealed declaration by a
participation in an attempted murder, along with a sealed transcript of the
witness's plea agreement proceeding. We
held that the trial court had deprived Townley of his
assistance of counsel by denying him access to these materials. That holding was unchallenged by the People,
and the high court expressed no opinion on this point. It did, however, reject this court's conclusion
that the error was a structural defect subject to automatic reversal under
272. On the contrary, our Supreme Court
held that an analysis of prejudice was required under the standard articulated
in Strickland v. Washington (1984)
466 U.S. 668,
and it accordingly remanded the case for that purpose.
Having
received post-remand written [and oral] argument from the parties, we now
conclude that no prejudice appears on the record before us. We also consider Townley's assertions that
(1) he was deprived of his Sixth Amendment right of confrontation during
cross-examination of the prosecution witness; (2) the prosecutor engaged in
"egregious" misconduct at trial; and (3) the trial judge improperly
commented on Flores's credibility. We find no prejudicial error on these
grounds, however, and therefore must affirm the judgment.
Background
Seventeen-year-old
Townley was accused by information with attempted murder, committed with three
accomplices: 18-year-old Jose Ruben Rocha,
16-year-old Jesse Carranco, and 18-year-old Noe Flores. The charges arose from the gang-related
shooting of Javier Lazaro around 9:00 p.m.
on February 17, 2006. In a telephone call at about 7:00 p.m. that night, Townley asked Flores
to "do a ride." Flores
drove his 1992 white Honda Accord to pick up Townley and his girlfriend, Amanda
Johnston, in Santa Cruz. Once in the car, Townley showed Flores
a small black handgun, which Flores handled and returned
to Townley.
Townley
directed Flores to drive to Watsonville,
where they picked up Carranco (known as "Little Huero") and Rocha
(known as "Listo"), whom Flores had not met
before. Townley was wearing People's
Exhibit 23, a red and black plaid Pendleton shirt-jacket, which Johnston had
given him as a gift. Carranco wore a red
hooded sweatshirt; he had four dots tattooed on his knuckles, signifying his
association with Northside, a Norteno gang.
in it. Flores wore black sweatpants, a
white T-shirt, gloves, and a black zip-up hooded sweatshirt. In his car he carried a T-ball bat (smaller
than a regular baseball bat), as he had been "tagged" by some
Surenos, whom he called "scraps," in downtown Santa Cruz on December
31, 2005.
The group
then drove back to Santa Cruz, dropping Johnston off before heading
downtown. Carranco said, "How's
that Norte life?" to a pedestrian.
Carranco
told Flores where to drive. The group
went to an apartment on Harper Street where Anthony Gonzalez lived. About 20 minutes later, Townley, Carranco,
Flores, and Rocha left the apartment, Carranco again directing Flores. The passengers in the car were talking about
finding a Sureno and saying there would be violence. Flores later told Detective Sulay that
Carranco was doing most of the talking.
According to Flores, there was no talk about shooting anyone as they
drove around.
As they
were moving down 17th Avenue, they saw Javier Lazaro on the sidewalk across the
street, walking back to his apartment at the Ocean Terrace complex, which was
located in an area known as Sureno gang territory. Lazaro, aged 29, was not associated with any
gang, but the sweatshirt he wore was blue, the color associated with the Sureno
gang. Carranco told Flores in a
"[k]ind of urgent" voice to turn around and pull over, and Flores did
so. Grabbing the T-ball bat that Flores
kept in the front passenger area, Carranco jumped out of the car, along with
Townley and Rocha. The three crossed the
street and ran after Lazaro as Flores waited in the driver's seat with the
engine running. He heard what sounded
like firecrackers; then the three others ran back to the car and Carranco told
him "urgently" to go. Flores
drove away rapidly with his passengers and followed Carranco's directions back
to Gonzalez's apartment.
Lazaro
testified that as he was walking back to his apartment he heard three or four
voices from inside Flores's car, and then someone yelled, "Come
here." He thought it was directed
at someone else, so he continued walking without turning around. Just as he reached the parking lot of the
apartment complex, he saw the group get out of the white Honda and run across
the street toward him. They asked him
whether he was Norteno or Sureno. At
that point Lazaro was frightened and ran, until he felt something push him to
the ground. Lazaro received five gunshot
wounds, including one that fractured a rib and bruised a lung. Two bullets remained in his body.
Lazaro did
not see who shot him, but Ginger Weisel, Lazaro's neighbor, was in the parking
lot when Lazaro walked away from the group.
She heard them call out "fucking scrap" and ask where Lazaro
was from before seeing one of them shoot Lazaro six to eight times. Lazaro fell after about four shots. Weisel recalled that the shooter was about
five feet, nine inches tall
name="_ftnref2" title="">[2] and wore a red and
black plaid Pendleton shirt. Weisel
called 911 from her apartment and returned to help Lazaro.
David Bacon
was driving on 17th Avenue when he saw Flores's car parked in a no-parking
zone. He saw what appeared to be two
Latino males of high school age, about five feet 10 inches tall. Seconds later he heard snapping sounds and
saw one of the group standing in a "classic shooting position,"
holding a gun. He heard a total of five
or six shots from what appeared to be a small-caliber gun. Bacon had the impression that the shooter
wore a plaid jacket, which could have been People's Exhibit 23. The second man appeared to be a lookout. Bacon then saw two people run back to the
car, which sped away. He parked his car,
called 911, and returned to help Lazaro, who was lying on the ground with two
women tending to him. Emergency
personnel arrived within a minute after the last shot.
Susan
Randolph stepped outside her home on 17th Avenue when she heard the gunshots. She described the three as young Latinos
between 16 and 20 years old, ranging from five feet, six inches to five feet,
nine inches.
Julie
Dufresne was driving on 17th Avenue with Jeanne Taylor when she heard popping
noises that sounded like fireworks, followed immediately by three people
running across the street in front of her car.
They were all about her height, five feet nine or 10 inches, or probably
shorter, and they appeared to be between 15 and 20 years old. One wore a thin, red and black plaid flannel
jacket.
Taylor
thought there were five popping sounds, followed by the "three young
men" running across the street in front of the car. One of them was less than five feet, five
inches and wore what looked like a plaid Pendleton shirt in black and red. He appeared to be staggering as if he were
drunk or "having difficulty with his coordination." The other two were taller; one wore a white
and black plaid shirt, People's Exhibit 22, and the other a hooded
sweatshirt. When they reached the white
car, one went to the backseat on the driver's side, and the other two went
around to the passenger side. Taylor
thought that People's Exhibit 23 looked like the red and black shirt the
"shorter person" had been wearing; Dufresne "couldn't say for
sure."
Randi
Fritts-Nash was one of the teenagers drinking at the Harper Street
apartment. Sitting in Gonzalez's bedroom
with five others, she heard a car pull into the parking lot, followed by a
couple of knocks at the window. Gonzalez
went to the window and then left the room.
Before he left, Fritts-Nash heard the anxious voices of two people
outside, one of whom said the words "hit" and "scrap."
When
Gonzalez reappeared, Townley and the other three were with him. Townley was wearing a red and black plaid
jacket, People's Exhibit 23. Fritts-Nash
heard Townley say something to Gonzalez about Watsonville Nortenos. She also saw Townley pull a small handgun out
of his pocket and wipe off the prints with a blanket. Townley moved the gun several times from one
pocket to another, saying, "I need to hide this gun." He also told her he was "looking at 25
to life." Rejecting Fritts-Nash's
suggested hiding place, Townley put the gun in his shoe and a small black
velvet bag of bullets into his other shoe.
Townley told her to cross her fingers for good luck. Fritts-Nash asked him if he had shot someone;
his head movement indicated an affirmative answer.
Townley and
Carranco, 17 and 16 respectively at the time of the shooting, were tried
together as adults under Welfare and Institutions Code section 707, subdivision
(d)(2). Flores and Rocha originally were
also charged as codefendants with attempted murder, but their cases were
severed on Townley's motion. Before
trial in this case, both Flores and Rocha entered into plea agreements in which
the prosecution would reduce the charges in exchange for their declarations
under penalty of perjury. Flores
thereafter pleaded guilty to assault with a firearm subject to a three-year
prison term, and the prosecutor dismissed the attempted murder charge against
him. Rocha pleaded guilty to assault
with force likely to produce great bodily injury, with an expected sentence of
two years. On the same date that Flores
and Rocha entered their pleas, April 17, 2007, the prosecution filed a motion
to reconsolidate the cases against Carranco and Townley, which the court
granted on April 26, 2007.
The jury
found Carranco and Townley guilty of attempted premeditated murder. It further found that both were minors who were
at least 14 years old at the time of the offense within the meaning of Welfare
and Institutions Code section 707, subdivision (d)(2), and were at least 16
years old at the time of the offense within the meaning of Welfare and
Institutions Code section 707, subdivision (d)(1). Townley was also found to have been armed
with a handgun and to have personally used it to inflict great bodily injury on
Lazaro. (Pen. Code, §§ 12022.53,
subds (b), (c), (d); 12022.5, subd. (a); 12022.7, subd. (a).) Townley was sentenced to life in prison with
the possibility of parole for the attempted murder, with a consecutive term of
25 years to life for the section 12022.53 firearm enhancement. Carranco was sentenced to the aggravated term
of nine years for the attempted murder, plus one year for a principal's being
armed during the crime.
Discussion
1. Issues Related to Flores's
Declaration
a. Restriction on Attorney-Client
Discussion of the Flores Declaration
The guilty
pleas in Flores's and Rocha's cases were taken in closed proceedings and the
reporter's transcripts were sealed by trial court order. At Flores's plea hearing the prosecutor
stated that Flores would be permitted to serve his sentence out of state
"because he was previously stabbed in the jail. There are very serious concerns about his
physical well-being."
Rocha's
declaration stated that he understood that he had "to tell the judge in
open court and under oath what I myself did on February 17, 2006." In Flores's declaration, on the other hand,
he stated: "I understand that I have to tell the judge in open court
and under oath that the contents of this declaration are true." He
also stated, "I do understand that I may be called as a witness in any
hearing related to the events that transpired on February 17, 2006."
At each
change-of-plea hearing, the court ordered the declaration to be filed under
seal, to be opened only if the prosecution called him to testify about any of
the matters covered in the declaration.
Defense counsel were permitted to look at the document, but they were
"prohibited from discussing the contents or the existence of the document
with their client or any other person."
Defense counsel also were not permitted to have a copy of the
declarations. As the Attorney General
notes, Flores's counsel emphasized that, even if the declaration was opened
under those circumstances, it "will not ultimately be part of the
paperwork that follows Mr. Flores to his prison commitment." The prosecutor thereafter provided a written
copy to the defense attorneys.
Counsel for
Townley and Carranco were unsuccessful in moving to withdraw the order not to
discuss the contents or existence of the document with their clients. At a hearing from which the defendants were
excluded, the court reasoned that it would be improper to rescind the order
without Flores's and Rocha's counsel being present. The court did advise defense counsel that if
the witnesses testified inconsistently with their statements, then the sealing
order "would be undone" and counsel would be free to cross-examine
them with the declarations. When the
prosecutor asserted that defense counsel had a right to use the documents to
cross-examine and impeach them, the court stated, "That's going a little
beyond what we put on the record, those plea agreements. The agreement was for their
protection." The court agreed with
the prosecutor's statement, "So once they take the stand, the order would
necessarily disappear because it doesn't make sense anymore."
Rocha did
not testify at trial, but Flores was called as a witness on the second day of
testimony. His testimony, the Supreme
Court noted, was "essentially consistent with, but more detailed than, the
information he had provided to police investigators." (Hernandez,
supra, 53 Cal.4th at p. 1101.) At
the end of that day, in the jury's absence, the court ordered the prosecution
to give defense counsel copies of Flores's sealed declaration "in order to
provide for adequate cross-examination of Mr. Flores." But the document was to be used only for
cross-examination, and counsel were still not permitted to share the statement
or its contents with their clients, or with investigators or other
attorneys.
During
cross-examination of Flores, "[b]oth defense attorneys used [his]
declaration to impeach him, establishing discrepancies between it and his trial
testimony. For example, witnesses to the
shooting reported that the man who shot Lazaro wore a red-and-black plaid shirt
or jacket. Flores testified he had worn
a blue or black shirt and Townley had worn a red-and-black flannel shirt. Defense counsel brought out that in his
declaration Flores had asserted he had worn a red-and-black Pendleton
shirt." (Hernandez, supra, 53 Cal.4th at p.1101.)
For
purposes of discussion the Supreme Court accepted the premise that the trial
court unjustifiably had interfered with Townley's access to his attorney by
sealing Flores's declaration and the transcript of his plea proceedings. The focus of the high court's review was the
question of whether Townley was denied his right to effective assistance of counsel by the trial court's order
forbidding counsel from discussing the declaration with his client. That question could be answered in the
affirmative, thereby requiring reversal, only if Townley demonstrated prejudice
from the asserted error, because this case did not present "circumstances
that are so likely to prejudice the accused that the cost of litigating their
effect in a particular case is unjustified." (Id. at p. 1104, quoting U.S.
v. Cronic (1984) 466 U.S. 648, 658.)
Thus, prejudice would not be presumed in this case, because the
challenged order had not rendered "the adversarial process presumptively
unreliable, such as where an accused is denied counsel at a critical stage of
trial, or counsel entirely fails or is unable to subject the prosecution's case
to meaningful adversarial testing."
(Id. at p.1106.) In contrast to the situation presented in
80, where petitioner was not allowed to consult with his attorney "about
anything" during a 17-hour overnight recess between his direct- and
cross-examination, "Townley was at all times free to consult with his
attorney generally about trial tactics and defense strategy, and although he
was not fully informed about Flores's probable testimony before Flores took the
stand, he was not prevented from discussing how to respond to Flores's
testimony after hearing it." (Hernandez,
supra, at p. 1106.) In addition, Townley's attorney opposed the
prosecution throughout the proceedings, thereby vitiating any conclusion that
counsel "entirely failed to subject the prosecution's case to adversarial
testing." (Id. at p. 1107; see
also U.S. v. Cronic, supra, 466 U.S. at p. 659
["if counsel entirely fails to subject the prosecution's case to
meaningful adversarial testing, then there has been a denial of Sixth Amendment
rights that makes the adversary process itself presumptively unreliable"];
compare Bell v. Cone (2002) 535 U.S.
685, 697 [counsel's failure to oppose prosecution "at specific
points" during sentencing required showing of prejudice under
the ban in this case violated Townley's right to " 'unrestricted
access to his lawyer for advice on a variety of trial-related
matters.' " (
defendant's testimony will likely be discussed, court may deny access to
attorney, contrasting Geders, supra, 425 U.S. at p. 91].)
We
therefore address first the question consigned to us upon remand, whether
Townley can show that the interference with his right to consult with his
attorney "deprived him of the effective assistance of counsel and there is
a reasonable probability that, but for the error, the result of the trial would
have been different." (
To
establish prejudice in accordance with the Supreme Court's decision, Townley
must adhere to the standard enunciated in Strickland—
that is, he must show that the interference "actually had an adverse
effect on the defense." (
693.) More precisely, there must be a
"reasonable probability" that without the error, "the result of
the proceeding would have been different."
(Id. at p. 694.) "The purpose of the Sixth Amendment
guarantee of counsel is to ensure that a defendant has the assistance necessary
to justify reliance on the outcome of the proceeding." (Id.
at pp. 691-692.) "[T]he ultimate
focus of inquiry must be on the fundamental fairness of the proceeding whose
result is being challenged. In every case the court should be concerned with
whether, despite the strong presumption of reliability, the result of the
particular proceeding is unreliable because of a breakdown in the adversarial
process that our system counts on to produce just results." (
claim of ineffectiveness must be whether [the error] so undermined the proper functioning
of the adversarial process that the trial cannot be relied on as having
produced a just result." (
"Surmounting
Strickland's high bar is never an
easy task." (Padilla v. Kentucky
(2010) 559 U.S. 356, __ , 130 S.Ct 1473, 1485.)
"It is not enough for the defendant to show that the errors had
some conceivable effect on the outcome of the proceeding[, as] not every error
that conceivably could have influenced the outcome undermines the reliability
of the result of the proceeding." (
693.) Nor must a defendant show that the
deficiency "more likely than not" altered the outcome in the
case. (Ibid.) The asserted error
must be "so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable." (
787-788.) Accordingly, a defendant must
show "a reasonable probability" that the result of the proceeding
would have been different. "A
reasonable probability is a probability sufficient to undermine confidence in
the outcome." (Strickland, supra, 466 U.S. at p. 694.)
Our Supreme
Court implicitly compared the situation presented here to a Confrontation
Clause issue such as that considered in Delaware
v. Van Arsdall (1986) 475 U.S. 673, a case in which the trial court
improperly prevented the defense from eliciting bias during cross-examination
of a prosecution witness by questioning him about the dismissal of his public
drunkenness charge.
title="">[3] The Supreme Court in Hernandez cited the factors employed in Van Arsdall,
name="_ftnref4" title="">[4] yet not to assess
the prejudicial effect of the lower court's restriction on the use of the
declaration, but to support the conclusion that "the circumstances
presented here . . . do not justify a presumption of
prejudice." (Hernandez, supra, 53 Cal.4th at p. 1108.) The court notably added, "There is no
reason in logic to require a showing of prejudice to establish reversible error
when impeaching evidence is withheld from a defendant and the defendant's attorney, but to presume prejudice when impeaching evidence is withheld
trial court and not the prosecution that prevented the defendant from learning
about the evidence." (Ibid.)
Townley
finds it "difficult to conceive how the court's unjustified order was a
non-prejudicial or harmless restriction" on his right to consult with his
attorney. The bulk of his argument,
however, and the authorities on which he relies, primarily serve to accentuate
the importance of Flores's testimony, in order to reinforce the seriousness and
magnitude of the trial court's error.
The People, however, no longer contest the fact of the error; its effect
on the reliability of the adversarial process is what is at issue. Much of Townley's argument also implies that
prejudice must be presumed here, a result the Supreme Court soundly rejected in
its opinion. Noteworthy in this respect
is the Supreme Court's rejection of Townley's reliance on Geders to support a presumption of prejudice: "Here, defense counsel was present
during all critical stages of the trial and Townley at all times had access to
his attorney, including during and after Flores’s testimony. In contrast to the situation in
was prevented from discussing the events of a day’s trial, Townley was at all
times free to consult with his attorney generally about trial tactics and
defense strategy, and although he was not fully informed about Flores’s
probable testimony before Flores took the stand, he was not prevented from
discussing how to respond to Flores’s testimony after hearing it." (Hernandez,
supra, 53 Cal.4th at p. 1106.)
Townley
emphasizes that Flores was a "key" prosecution witness and the
prosecutor's depiction of the declaration as "essential to proving her
case"; the latter fact, he argues, was "essentially a concession of
prejudice under the Strickland
standard." Townley suggests that
although there was "some circumstantial evidence" that he was the
shooter, the eyewitness testimony excluded him:
The shooter was described as a dark-complected Hispanic male who was
speaking in Spanish, whereas Townley was described as a "white guy"
who did not speak Spanish. These
inconsistencies, however, were brought to light at trial. Townley has not shown how defense counsel's
inability to discuss Flores's declaration with him impaired counsel's ability
to expose and underscore the weak points in the prosecution's case.
The length
of the jury's deliberations (three days) is also not a persuasive factor here;
this was a complex case involving a serious crime involving multiple
perpetrators, with multiple witnesses offering inconsistent testimony at
trial. (Cf. In re Sassounian (1995) 9 Cal.4th 535, 549, fn 10 [closeness of
case not determined by jury's time spent deliberating, given complexity of
evidence and law, youth of petitioner, and other circumstances];
837 [seven-day deliberations indicates conscientious jury but not necessarily
close case considering three-month duration of trial and complexity of issues];
see also People v. Houston (2005) 130
Cal.App.4th 279, 301 [four-day deliberation speaks to jury's diligence, not
closeness of case, where trial was extensive, with lengthy arguments, more than
three dozen witnesses, and a "mass of information" to digest].)
Townley
accords additional weight to the inconsistency between Flores's declaration --
in which he stated that he wore a red and black Pendleton during the shooting
testimony, in which he stated that Townley had been wearing the Pendleton. But Flores was cross-examined on this
discrepancy, including the statement in the declaration that he had been
wearing a "red and black Pendleton shirt" on the night of the
shooting.
Townley
further points to one witness's testimony that the shooter appeared to be
drunk, as he exhibited a "staggered gait." Townley's argument is that if he had been
permitted "to discuss Flores's proposed testimony which would
prosecutor . . . feared he would without the declaration),
counsel and Appellant could have developed an intoxication defense that could
have negated premeditation, intent to kill and intent to discharge a firearm." Again there is nothing in the record
indicating that counsel could not have developed this defense without the aid
of Flores's declaration. It was Jeanne
Taylor, an eyewitness, who contributed the observation of the apparent shooter's
intoxication.
This case
would be amenable to reversal for ineffective assistance of counsel if we could
conclude that Townley would have been able to make a material contribution to
his defense had his attorney been allowed to discuss Flores's declaration with
him. We can find nothing in this
appellate record, however, that permits such an inference beyond bare
speculation. Townley's attorney, having
examined the declaration and plea transcript, was already aware of the
discrepancies between the witness's declaration and his direct testimony --
discrepancies that included the important inconsistency regarding who wore the
Pendleton -- and Flores was cross-examined accordingly to bring out these
contradictions before the jury. As the
Supreme Court itself noted, "The primary value of the sealed materials to
Townley was their usefulness as tools of impeachment during cross-examination,
either to highlight discrepancies between the facts Flores recited in his
declaration and his testimony at trial, or to support the argument Flores had fashioned
a declaration favorable to himself and must have then felt compelled to testify
in accordance with that declaration.
Counsel's inability to consult with Townley about the materials would
not have hampered his ability to make either point." (Hernandez,
supra, 53 Cal.4th at p. 1107.)
The court further commented on Townley's point that there were 22
details in the declaration that were not contained in the police reports: "But the very ease with which these
details may be identified works against his argument that it would be difficult
to assess the prejudicial effect of the trial court's order." (Ibid.,
fn. 5.) Townley fails to show what
insight he would have provided to the defense that would have illuminated or
enhanced the cross-examination of Flores.
Townley has overcome the "high bar" of the prejudice analysis
here.
b. Restrictions on Cross-Examination of Flores
Townley
next contends that the court unfairly sustained objections by the prosecutor
during Carranco's cross-examination of Flores.
Carranco's attorney attempted to point out, for example, that (1) the
declaration Flores signed was not the first draft (prosecutor's objection not
ruled upon); (2) the declaration had omitted any account of Flores's first
visit to the Harper Street apartment; (3) the declaration had omitted the
detail that Carranco directed Flores, who was driving, back to the apartment;
and (4) the title of the declaration indicated that Flores was charged with a
crime. To these efforts the prosecutor
successfully objected.
name="_ftnref7" title="">[7]
But these
were problems for Carranco, not issues over which Townley had an
objection. The third point, the omitted
detail regarding direction by Carranco, was not a subject on which Townley
joined in cross-examination; indeed his attorney objected to this area of
questioning as "absolutely prejudicial to . . . Mr.
Townley." In response to the
prosecutor's continuing objection before the jury regarding changes to the
declaration, the court explained, "He's on the witness stand and can be
cross-examined on the document to the extent it's different [from] what he
testifies to here. However, he cannot be
asked extensive questions about what's not in the document because that would
be misleading and [he] can't really explain that to the jury, but there are
reasons for the document to be prepared that Mr. Cave [Carranco's attorney]
doesn't seem to understand or accept."
This admonishment did not reflect any failing or unfair restriction on
Townley's own cross-examination of the witness, which had already taken place.
F.3d 1091, does not alter this result.
In that case the trial court excluded statements made by the child abuse
victim indicating personal familiarity with sexual activities. The Ninth Circuit held that the evidence,
which indicated "a highly active sexual imagination or
. . . a familiarity with sexual activities" was
"clearly relevant" impeachment evidence, as it could have shown not
only bias but a "tendency to exaggerate or overstate, if not outright
fabricate" events. (
defendant's Sixth Amendment right to confront the witness. In this case, however, the rulings to which
Townley takes exception were, as noted, not directed at his own examination of
the witness. Holley does not help him here.
2. Prosecutorial Misconduct
Townley
next contends that the prosecutor overstepped the bounds of proper advocacy in
a number of ways, thus engaging in misconduct that was individually and cumulatively
prejudicial. The People respond first
that Townley's attorney failed to preserve the issue as to some of the asserted
instances of misconduct by failing to object.
As to others, they maintain that the act was not misconduct at all. We examine the parties' positions as to these
claims first by reviewing the context in which they occurred.
a. Comments on Witness
Credibility
"It is
misconduct for a prosecutor to express a personal belief in the merits of a
case, rather than a belief based upon the evidence at trial. [Citations.]" (People
v. Johnson (1981) 121 Cal.App.3d 94, 102.)
Similarly, "[t]he prosecutor is generally precluded from vouching
for the credibility of her witnesses, or referring to evidence outside the
record to bolster their credibility or attack that of the defendant. [Citations.]" (People
v. Anderson (1990) 52 Cal.3d 453, 479.)
However, when the prosecutor relies on the evidence presented at trial
and the inferences to be drawn from this evidence, and does not imply any personal
knowledge or belief based on facts outside the record, the prosecutor has not
engaged in improper " 'vouching.' " (People
v Medina (1995) 11 Cal.4th 694, 757; see also People v. Frye (1998) 18 Cal.4th 894, 971, disapproved on other
grounds in People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22 [prosecutor’s comments not improper vouching if
assurances regarding the apparent honesty or reliability of prosecution
witnesses are based on the facts and reasonable inferences, not purported
personal knowledge or belief].)
During
opening statement the prosecutor told the jury that the police sergeant who
interviewed Townley at Harper Street "felt that he was holding back and
not being entirely truthful. The
sergeant thought that maybe that was because they were in a Norteno[-]
affiliated house and he was investigating a shooting by three or four guys
wearing red who shot at another guy in a blue sweatshirt. [¶] So
the decision was made to take them to the Sheriff's Office for an interview to
see if in a different kind of environment he might be more
forthcoming." When the jury had
been dismissed for the day, Townley's attorney objected and moved for a
mistrial, reminding the court that during in limine motions he had opposed the
prosecutor's request to call a gang expert.
In that opposition counsel had expressed the concern that the expert
might suggest that a witness was lying to help the defendant or that a former
codefendant testifying for the prosecution was credible. The court had allowed the gang expert to
testify, but only as to matters the jury had heard from other witnesses. The expert was not to "address issues
like snitch and rat and veracity and credibility . . . unless
it's become apparent from the testimony of . . . witnesses that there's
a basis for that needing to be explained to the jury in some way. [¶]
But he cannot be put in a position where he is either vouching for the
credibility of your witnesses or . . . essentially negatively
vouching for them in any way . . . ."
The trial
court denied the mistrial motion, noting that the "no vouching" order
pertained to a different situation:
"What was referred to here was actually the policeman's impression
of behavior that he saw from a person that he was interviewing at that
time," in contrast to the pre-trial discussion of an opinion of a
witness's credibility because he or she was a "snitch."
In
examining Sarah Oreb, the prosecutor attempted to bring out the inconsistencies
between her trial testimony and her prior statements to the police. After an initial hearsay objection (without a
ruling) Oreb was permitted to describe the officers' tactics in trying to
persuade her to admit that she had heard Townley say he had "hit a
scrap." The defense did not object
as Oreb continued with this testimony and denied that Sergeant Fish had
accurately reported her voluntary statement to him. However, at one point the prosecutor, having
repeatedly attempted to elicit Oreb's admission that she had heard the
"hit a scrap" statement, said, "I suppose you wouldn't be
surprised to hear I don't believe [you].
Which is why I am continuing to ask the question." Townley's counsel immediately objected. The objection was sustained, and the court
admonished the jury to disregard the remark.
The prosecutor then asked Oreb, "If there's a recording of your
interview with both Deputy Pintabona, and a subsequent interview with Detective
Henry Montes, they edited those recordings?" Counsel's objection to this argumentative
question was also sustained.
Further
into her testimony, Oreb was insisting that she had lied every time she said
she had heard the "hit a scrap" statement. She maintained that it was not acceptable to
lie, which was why she was then telling the truth. The prosecutor asked,
"Okay. So recently, within the last
two weeks, you decided that you shouldn't lie?
[¶] [Oreb]: No, not within the last two weeks. [¶]
[The prosecutor]: When did you
decide you weren't going to lie? . . . [¶]
[Oreb]: I don't know. [¶]
[The prosecutor]: When did it
become important to you not to lie?
[¶] [Oreb]: It's always been important to me not to
lie. [¶]
[The prosecutor]: Apparently it
wasn't so important each time you talked to somebody in law
enforcement?" Again both defense
attorneys objected to the question as argumentative, but this time the court
overruled the objection. However, just
before playing the recording of the first interview, the prosecutor asked why
Oreb had lied about hearing a knock at Gonzalez's apartment window. Oreb recounted how she had merely told the
interviewer what he wanted to hear. The
prosecutor asked, "Did it occur to you that he didn't believe
you?" Defense objections were sustained
as argumentative and calling for speculation.
Oreb also
testified that she used Townley's name and the words about hitting a scrap
because that was what she had heard from others. Defense objections were raised on hearsay
grounds. The trial court overruled one
objection on the ground that it went to credibility. When defense counsel affirmed that the
questioning was relevant to credibility only and not for the truth, the court
explained to the jurors that as to these questions about the source of Oreb's
information, they could use Oreb's testimony not for the truth of what other people
said but only to determine whether Oreb was telling the truth about her
recollection.
Anthony
Gonzalez also recanted the statement he had made about the shooting in police
interviews. Like Oreb, he said he did
not remember what had happened that night and had simply told the police what
they wanted to hear because they had arrested him. Gonzalez said he kept telling the detectives
what he knew and they kept telling him it wasn't true. Later, the prosecutor asked Detective Ramsey
about a subsequent interview with Gonzalez.
Ramsey testified that the purpose of the second interview was to
"see if he'd be a little bit more up front and cooperative" with the
officers. The prosecutor then asked,
"And did you find that he was a little bit more forthcoming?" Townley's attorney objected to the question
as irrelevant, and the objection was sustained.
"The
standards governing review of misconduct claims are settled. A prosecutor commits misconduct under the
federal Constitution when his or her conduct infects the trial with such
' "unfairness as to make the resulting conviction a denial of due
process." ' [Citations.] Under state law, a prosecutor who uses deceptive
or reprehensible methods to persuade the jury commits misconduct even when
those actions do not result in a fundamentally unfair trial." (People
v. Hawthorne (2009) 46 Cal.4th 67, 90, citing People v. Frye, supra, 18 Cal.4th at p. 969.)
" '[A]
prosecutor is prohibited from vouching for the credibility of witnesses or
otherwise bolstering the veracity of their testimony by referring to evidence
outside the record. . . . However, so long as a prosecutor’s assurances
regarding the apparent honesty or reliability of prosecution witnesses are
based on the "facts of [the] record and the inferences reasonably drawn
therefrom, rather than any purported personal knowledge or belief," [her]
comments cannot be characterized as improper vouching. [Citations.]'
[Citation.]" (People v. Ward (2005) 36 Cal.4th 186, 215.)
"In
order to preserve a claim of misconduct, a defendant must make a timely
objection and request an admonition; only if an admonition would not have cured
the harm is the claim of misconduct preserved for review. (People
v. Alfaro (2007) 41 Cal.4th 1277, 1328 . . . .)" (People
v. Hawthorne, supra, 46 Cal.4th at p. 90; People v. Lopez (2008) 42 Cal.4th 960, 965-966.)
Townley
contends that "clear misconduct" occurred when the prosecutor
commented on Oreb's lack of credibility.
The court sustained the objection to that remark, however, and
admonished the jury accordingly, thus averting any prejudice. The reference to the police impressions
during opening statement and the questioning about Oreb's lies likewise created
no reversible misconduct. The court
properly ruled that the opening statement did not violate the in limine order;
and the court sustained defense counsel's objections to argumentative
questioning of Oreb with only one exception.
That exception could not have had a significant impact on the jurors'
perceptions of the case, as it only emphasized what they already knew, that
Oreb had lied during questioning by the police.
The subsequent jury instruction to ignore any question to which an
objection was sustained reinforced the court's admonition and thus prevented
any prejudice. It is also noteworthy
that no requests to admonish the jury followed the objections to the
prosecutor's questions.
Otherwise,
the examination of Oreb proceeded without objection on the ground now
asserted. Townley has forfeited the
issue as to these questions, and does not present analysis to support the bare
assertion of ineffective assistance of counsel.
In any event, it is clear that Oreb's insistence that she had lied to
the police supported Townley's defense.
Thus, allowing the prosecutor to elicit this testimony was justified as
a tactical choice by the defense.
Failing to object to asserted prosecutorial misconduct does not warrant
reversal on appeal for ineffective assistance of counsel "except in those
rare instances where there is no conceivable tactical purpose for counsel's
actions." (People v. Lopez, supra, 42 Cal.4th at p. 972.)
As to the
prosecutor's examination of Gonzalez, the only objections made by the defense
were for hearsay, leading, and irrelevance.
The recordings of both Oreb and Gonzalez were allowed over the objection
that they did not contain prior inconsistent statements. The court properly ruled in both cases that
the witnesses had fabricated their testimony—in Oreb's case, that she had heard
nothing at the window, and in Gonzalez's case, that he did not remember
anything that had happened that night.
b. References to
Townley's Bad Character
(1)
Involvement in previous criminal activity
Without
objection from the prosecution the court granted a defense motion in limine to
preclude evidence that Townley had a juvenile record and was on juvenile
probation at the time of the offense.
Also precluded without objection was evidence or allegations that
Townley might have been involved in other shooting incidents. Nevertheless, early in direct testimony by
Detective Phillips, the prosecutor asked him what he had been asked to do on
February 18, 2006. He answered that he
had been asked to assist another detective in conducting a probation search,
and he started to recite the address when both defense attorneys and the
prosecutor interrupted with objections.
After conferring privately with the witness, the prosecutor resumed her
examination with the question, "You did a probation search first thing in
the morning on a different case; is that right?" The witness replied in the affirmative, and
when asked whose house he searched, he named the people who lived there,
including defendant Townley.
Later,
during testimony by Scot Armstrong, a ballistics expert, he mentioned two
sheriff's numbers corresponding to two cases.
Subsequently he was referring to "fired cases" identified as
"REG-1, number 1 through 4.
REG-110. And
131MH-001." The prosecutor directed
the witness's attention to the five "REG" casings submitted when Townley's
attorney obtained a sidebar conference.
After completion of Armstrong's examination, both defense attorneys
moved for a mistrial. The prosecutor
acknowledged the in-limine ruling but noted that she had directed the witness
not to mention any other investigations.
"Clearly, he forgot."
The slip, the prosecutor stated, "certainly was not anything
intentional." Moreover, she argued,
the jury was not likely to have understood what the witness was referring to by
"SCD" numbers and different casings.
The court agreed that "there was not enough there that the jury
could possibly infer that there were other investigations going on or there
were other bullets or casing being investigated beyond what's in this
case."
On appeal,
Townley contends that the prosecutor engaged in "highly prejudicial
misconduct" by eliciting information about his probation status and other
shootings. He maintains that not only
was the mention of a probation search improper, but the prosecutor
"compounded the problem" by informing the jury "
a different case."
While
"[i]t is misconduct for a prosecutor to violate a court ruling by
eliciting or attempting to elicit inadmissible evidence in violation of a court
order" (People v. Crew (2003) 31
Cal.4th 822, 839), it is evident from the record that the incipient reference
to a probation search occurred because Phillips forgot to avoid mentioning any
case but this one. It is true that a
prosecutor " 'has the duty to guard against statements by his witnesses
containing inadmissible evidence,' and if a prosecutor 'believes a witness may
give an inadmissible answer during his examination, he must warn the witness to
refrain from making such a statement.' "
(People v. Earp (1999) 20
Cal.4th 826, 865.) Here, however, the
prosecutor did warn the witness not to refer to other investigations; and when
he slipped, she interrupted her examination apparently to remind him. As in Earp,
"nothing in the record suggests that the prosecutor had a basis for
anticipating the response in question by Detective [Phillips]. Therefore, there was no prosecutorial
misconduct." (Ibid.)
As to the
disclosure of the additional forensic investigation, Townley disputes the
People's characterization of the disclosures as inadvertent; in his view, it
was part of a "demonstrated pattern of ignoring or attempting to evade the
trial court's rulings." We find no
error in the trial court's ruling, however.
As did the trial court, we find the prosecutor's brief references to
obscure case numbers unlikely to encourage the jurors to speculate that Townley
was being investigated for other shooting incidents. She mitigated potential harm by refocusing
the witness's account on the shooting of the night before, relegating the
mention of a probation search to an apparently unrelated case. The court's determination that the disclosure
was obscure, unintentional, and unlikely to cause prejudice is supported by
substantial evidence.
(2) Evidence that Townley was Dangerous
Detective
Ramsey testified that while Detective Makdessian was transporting Townley to
the sheriff's station, Ramsey, who was in the car ahead, received information
from Sergeant Sulay that caused him to alert Makdessian to stop the patrol
car. The officers asked Townley to step
out of the car; then they handcuffed him and examined his shoes. Inside the right shoe was an unloaded pistol;
in the left shoe was a bag containing cartridges. During the direct examination of Ramsey, the
prosecutor asked him to describe his "degree of alertness" in this
encounter. The witness replied,
"Extremely heightened." The
prosecutor then asked, "Did you feel that your safety was in
danger?" The witness answered,
"Yes." At that point, however,
Townley's attorney objected and moved to strike. The court granted the motion
and admonished the jury to disregard the answer. The prosecutor's next question, whether
Ramsey had his gun out, was answered in the negative; but when she asked why
not, his answer-- "I didn't want to --" was interrupted by another
objection on irrelevance grounds, which was also sustained.
While
Detective Makdessian was describing the same events, he stated that while
transporting Townley he received an urgent call from then-Deputy Fish over the
car radio, which the detective returned by cell phone. The prosecutor asked, "Did you have a
physiological response after you had that phone conversation with Sergeant
Fish?" Defense counsel objected to
the question as irrelevant, and the court sustained the objection. After describing Detective Ramsey's removal
of the gun from Townley's shoe, Makdessian was asked, "Had you ever
transported somebody unhandcuffed with a gun before?" He answered, "Never." The prosecutor continued, "Do you anticipate
ever doing that again?" Another
defense objection to the irrelevant question followed and was sustained.
Sergeant
Fish was also questioned about the discovery of the gun. Hearsay and irrelevance objections were
sustained to two questions: about what a
witness had told him and about whether Sergeant Sulay's telephone call was
related to officer safety. Because the
question about officer safety was answered ("Very much") before the
objection was sustained, the court instructed the jury to disregard the answer.
Townley
contends that this line of questioning improperly suggested that Townley was a
danger to the officers' safety. The
questions, however, did not imply that the officers were actually threatened by
Townley, nor that their safety concerns were caused by anything other than the
knowledge that there was a passenger in the backseat with access to a
weapon. In any event, the questions were
at worst irrelevant and they provoked objections sustained on that ground. No
prejudice resulted from the prosecutor's line of questioning about officer
safety.
Townley
further argues that the prosecutor tried to give the jurors the impression that
Flores was in protective custody because the defendants were a threat to
him. The prosecutor was permitted to
bring out Flores's statement that he was in "PC," or protective
custody. When the prosecutor asked
whether he was in protective custody because he had given a statement to the
sheriff's deputies, the objection as speculation was sustained. Then the prosecutor asked, "Who is
housed in protective custody?"
Objections on multiple grounds followed, and the court suggested that
the prosecutor move on to other questions until they could discuss the issue
later. After the jury had left for the
day, the prosecutor protested that it was important to present the evidence
that he had to be housed in protective custody and transported separately
because he was a snitch and had negative feelings about that
"category." The court pointed
out that Flores had said he was not afraid to be there testifying. Following extensive debate on the issue, the
court cited the right to a fair trial and sustained the defense objection.
Flores
eventually admitted that he did not want to tell the police about what his
companions had done the night of the shooting because he did not want to get
them in trouble. The prosecutor
questioned Flores further about what he thought of people who told the police
about crimes others had committed. Her
questions about why Flores did not want to tell the police what had happened
the night of the shooting were permitted; but the court sustained relevancy
objections to her question about what word was used to describe a person who
told the police what someone else had done, as well as the questions about what
Flores thought about such people. The
court overruled the objection to the question whether he wanted to be such a
person. Flores said he might get hurt. The prosecutor was not so successful in
asking whether Flores felt like a Good Samaritan; he did not have an opinion
about whether a person who told the police about a crime was a Good Samaritan,
and he did not feel like one when he was talking to the police. The question "Why not" was met with
another objection, which was sustained as irrelevant. At that point the court directed the
prosecutor to move on to another area, and she did.
The
prosecutor later asked Flores whether he had wanted to talk to the police; he
said he had not. When she asked why, a
defense objection was overruled and Flores simply answered that he had not
wanted to get in trouble. Flores
explained that he had eventually told the truth to Sergeant Sulay, though he did not like talking
to him. The question "Why
not?" was again met with an irrelevance objection, which was
sustained. Also sustained were similar
objections to the question, "Why did you ultimately tell Sergeant Sulay
the truth?" and the question, "What did you think about yourself for
[telling Sergeant Sulay what had happened the night before]."
Ginger
Weisel, the victim's neighbor at the Ocean Terrace apartment complex, testified
at length about what she had seen that night.
On redirect, the prosecutor asked whether she wanted to be there
testifying; she answered that she did not.
The prosecutor asked why; and the defense objection ("352")
was overruled. The witness responded
that she did not "need to be part of this" and did not "want
problems." She then was allowed,
over objection, to testify that she was familiar with gangs and knew there were
Surenos living at the complex.
The jury
subsequently heard from Detective Montes, the gang investigator who related
Oreb's statement that she had "heard somebody say they hit a
scrap." Oreb was not threatened
with custody, nor was Gonzalez in custody at the time of the detective's
interview with her. The prosecutor asked
Detective Montes whether it had appeared to him that Oreb "was at all
reluctant" to tell him that she did not remember looking out the window,
but defense objections were sustained.
The prosecutor then asked whether Oreb's demeanor had suggested any
reluctance or timidity, and another objection was sustained. The jury was instructed to disregard the last
two answers, but no answer to either question exists on the record.
When Gonzalez
was describing his interview with sheriff's deputies, he was asked whether he
was "scared" while talking to them.
The court sustained defense counsel's objection to the question as
irrelevant. Also sustained were
questions about whether he remembered contrasting his concern about his freedom
"with something else" (irrelevant); whether he had wanted to speak
with the police officers (irrelevant), and whether he wanted to be there
testifying (asked and answered). Later
the prosecutor asked, "Did you feel that, or do you feel now that talking
about what happened that night is dangerous for you?" The objection ("irrelevant. 352.")
was sustained. Then the prosecutor
repeated the question, "Do you want to talk about what happened that
night?" The same objection was
sustained, along with the court's comment that this question had been asked and
answered.
This record
reveals that to the extent that the prosecutor sought to portray witnesses as
in fear of Townley, she was unsuccessful.
Whenever she asked a question that could have suggested an answer
revealing fear by a witness, defense counsel interrupted with a timely
objection, and if the witness had already answered, the jury was instructed to
disregard it. In addition, the jurors
were instructed at both the beginning and the end of trial that the attorneys'
remarks and questions were not evidence; only the witnesses' answers were
evidence. They also were told that if an
objection was sustained, they must ignore the question, refrain from guessing what
the answer might have been, and disregard any answer that might have been
given. (Cf. People v. Hamilton (2009) 45 Cal.4th 863, 928-929 [instruction that
attorneys' questions were not evidence eliminated the possibility of jury's
considering facts not in evidence].)
"As a general matter, we may presume that the jury followed the
instructions it was given . . . and defendant has failed to
supply any persuasive reason to suppose the jury instead would have accepted as
evidence the insinuation allegedly implicit in the prosecutor's
questions." (People v. Prince (2007) 40 Cal.4th 1179, 1295.) Accordingly, no prejudice could have resulted
from any improper questions posed by the prosecutor.
c. Comments during
Argument to the Jury
"When
the issue 'focuses on 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.' [Citations.]
A prosecutor is given wide latitude during closing argument. The argument may be vigorous as long as it is
a fair comment on the evidence, which can include reasonable inferences or
deductions to be drawn therefrom.
' "A prosecutor may 'vigorously argue his case and is not
limited to "Chesterfieldian politeness" ' [citation], and he may
'use appropriate epithets . . . .' "
. . . ' "
(People v. Harrison (2005) 35
Cal.4th 208, 244; People v. Williams
(1997) 16 Cal.4th 153, 221.)
" 'To
prevail on a claim of prosecutorial misconduct based on remarks to the jury,
the defendant must show a reasonable likelihood that the jury understood or
applied the complained-of comments in an improper or erroneous manner.' [Citation.]" (People
v. Wilson (2005) 36 Cal.4th 309, 337.)
"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." (
at p. 970.) "We presume the jurors
treated 'the prosecutor's comments as words spoken by an advocate in an attempt
to persuade' [citation] . . . ." (
1204.) In addition, while a defendant
may single out certain comments made by the prosecutor during argument in order
to demonstrate misconduct, as the reviewing court we "must view the
statements in the context of the argument as a whole." (Id.
at p. 1203.) Finally, " 'A
defendant’s conviction will not be reversed for prosecutorial misconduct . . .
unless it is reasonably probable that a result more favorable to the defendant
would have been reached without the misconduct.' [Citation.]" (People
v. Harrison, supra, 35
Cal.4th at p. 244; People v. Bolton
(1979) 23 Cal.3d 208, 214.)
(1) Appealing to Fear of Gang Violence
Townley
protests the prosecutor's "improper comments that preyed upon the jury's
fear" during her argument. One of
the challenged remarks occurred in the context of the prosecutor's discussion
of the natural and probable consequences of an assault: "Is somebody almost dying a natural and
probable consequence of assaulting a rival gang member in that rival gang
member[']s turf? Read about it all the
time. You read . . . about it
all the time. Gang fights where somebody
ends up dead." At this point
Carranco's attorney objected, but the prosecutor maintained that she was only
talking about natural and probable consequences. The court cautioned her to be "careful
about the intent issue" and overruled the objection. The prosecutor then continued with the point
that one has to intend the assault, but "almost being killed [was] a
natural and probable consequence" of an attack by a rival gang member.
During her
facts that Lazaro was shot five times and that "there were additional
bullets brought" to show that Townley had premeditated and planned to kill
the victim. She queried, "Why did
he need all those bullets? Why did he
need all those bullets? Maybe they were
going to go out and do another one. But
why, if you don't mean to kill somebody, do you need to have to [
| Description | This case returns to us on remand from the California Supreme Court in People v. Hernandez (2012) 53 Cal.4th 1095 (Hernandez). This court had found error in the superior court's refusal to permit trial counsel to show his client, defendant Jacob Townley Hernandez (Townley), a sealed declaration by a prosecution witness attesting to his own participation in an attempted murder, along with a sealed transcript of the witness's plea agreement proceeding. We held that the trial court had deprived Townley of his Sixth Amendment right to effective assistance of counsel by denying him access to these materials. That holding was unchallenged by the People, and the high court expressed no opinion on this point. It did, however, reject this court's conclusion that the error was a structural defect subject to automatic reversal under Perry v. Leeke (1989) 488 U.S. 272. On the contrary, our Supreme Court held that an analysis of prejudice was required under the standard articulated in Strickland v. Washington (1984) 466 U.S. 668, and it accordingly remanded the case for that purpose. Having received post-remand written [and oral] argument from the parties, we now conclude that no prejudice appears on the record before us. We also consider Townley's assertions that (1) he was deprived of his Sixth Amendment right of confrontation during cross-examination of the prosecution witness; (2) the prosecutor engaged in "egregious" misconduct at trial; and (3) the trial judge improperly commented on Flores's credibility. We find no prejudicial error on these grounds, however, and therefore must affirm the judgment. |
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