P. v. Jones

Filed 9/29/06 P. v. Jones CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Los Angeles County Superior Court, Ruffo Espinosa, Jr., Judge. Affirmed.

Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Supervising Deputy Attorney General, April S. Rylaarsdam, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted defendant and appellant Frank Jones (defendant) of two counts of second degree robbery (Pen. Code, § 211[1]) and one count of attempted second degree robbery (§§ 664/211). The jury found true the allegation that defendant personally used a firearm in the commission of the robberies and attempted robbery. (§ 12022.53, subd. (b).) The jury found not true the allegation that defendant used a deadly and dangerous weapon in the commission of the attempted robbery. (§ 12022, subd. (b)(1).) The trial court sentenced defendant to 21 years, four months in state prison.

On appeal, defendant contends that there was insufficient evidence to support his robbery and attempted robbery convictions, the trial court improperly admitted evidence of two of his prior convictions for impeachment, and the trial court improperly restricted defense counsel’s comments about a newspaper account of misidentification in connection with eyewitness identification in closing argument. We affirm.

BACKGROUND

At about 7:00 a.m. on September 3, 2004, David Zavala drove to a doughnut shop near the intersection of Vermont and Martin Luther King Boulevard in Los Angeles. Zavala parked near the shop’s entrance. Zavala first saw defendant as Zavala entered the shop. Defendant was in front of the door. Defendant’s bicycle, a beach cruiser, blocked the entrance. Zavala and defendant looked at each other and defendant moved his bicycle.

Zavala was five feet, 11 inches tall. He believed that defendant was a couple of inches taller than him. Defendant had a partial beard and appeared not to have shaved for a couple of days. Defendant was wearing a black hat and black clothes “like a sweatsuit.”

When Zavala exited the doughnut shop, defendant asked him if they knew each other from high school. Zavala looked at defendant’s face, trying to remember him. Zavala kept walking and said that he did not recognize defendant. Defendant persisted, following Zavala to his car. Defendant said, “Yeah, remember? We went to high school together.” Zavala got in his car and tried to close the door. Defendant grabbed the door, preventing Zavala from closing it. Defendant said, “Yeah, man we went to high school together.”

Defendant pulled a small, faded black gun from his pocket and pointed it at Zavala’s abdominal area. The gun was about six inches and had a silver tab on the side. Defendant said, “Give me your money or I’ll blast your ass.” Zavala understood defendant’s threat to mean that defendant was going to shoot him with the gun. Zavala was “quite scared.” Zavala gave defendant about $23 from his pocket. Defendant asked Zavala what was in his wallet. Zavala showed defendant that he did not have any money in his wallet.

Defendant then ordered Zavala to “Give me your keys.” Zavala handed his keys to defendant and defendant tossed them into the middle of the parking lot. Defendant told Zavala not to move or he would shoot Zavala, or words to that effect. Defendant got onto his bicycle, picked up Zavala’s keys, and threw the keys farther away before riding off.

Zavala, a teacher at a nearby high school, went to work and reported the incident to school police officers. Zavala later spoke with Los Angeles Police Department officers. Zavala told the police that defendant had touched his door. Zavala did not see the police dust for fingerprints on his car.

On October 19, 2004, Zavala went to the police station and identified defendant from a six-pack photographic lineup. Zavala recognized defendant immediately. On January 31, 2005, Zavala went to the county jail where he identified defendant in a live lineup. Zavala was certain that the person he identified in the live lineup was the person who robbed him. Zavala also identified defendant at the preliminary hearing and at trial.

Ronald Rich lived in the area of 41st Place and Figueroa in Los Angeles. At about 8:30 p.m., on October 1, 2004, defendant approached Rich as Rich was walking home with a bag of groceries. Defendant said, “Brother man, brother man.” Defendant stopped Rich and faced him from a distance of about six feet. Rich believed that defendant was almost six feet tall. Defendant had a shaved head and “somewhat of a goatee.” Rich could not remember what defendant was wearing.

Rich thought defendant was going to ask him for some money. Instead, defendant pulled out a small, silver pistol which he pointed at Rich’s chest. Rich was “very, very afraid.” Defendant told Rich that “it was a robbery” and that he wanted Rich’s “cash.” Defendant told Rich that if Rich ran, he would shoot Rich, and if Rich told the police, he would “blast” Rich the next time he saw him. Rich understood defendant’s threat to mean that defendant would shoot him. Rich was afraid and gave defendant his wallet. Defendant took $13 Rich had in the wallet and walked away.

Rich did not call the police for a week. He was afraid that if he called the police, defendant would “blast” him the next time defendant saw him as defendant had threatened. On October 18, 2004, Rich identified defendant from a photographic lineup. On January 31, 2005, Rich went to the county jail where he identified defendant at a live lineup. Rich recognized defendant immediately. Rich was able to recognize defendant immediately because he had been shown photographs at home several times. Rich also identified defendant at the preliminary hearing and at trial.

At about 10:30 p.m., on October 12, 2004, defendant approached Jaime Guzman from behind as Guzman walked in the area around 41st Street and Figueroa in Los Angeles. Guzman had been on his guard as the area was “very dangerous.” That area was “where they sell drugs.”

Defendant was wearing navy blue or black pants and a jacket -- a matching set “for like exercise” -- with a t-shirt underneath. Defendant’s head was shaved. Guzman estimated that defendant was 35 to 40 years old. Guzman got a good look at defendant’s face. Defendant appeared to be drunk or on drugs.

Defendant stopped about two feet in front of Guzman. Defendant said to Guzman, who spoke Spanish but understood a little English, “I’m fucking your money.” Defendant removed a six-inch, lead or nickel gun (on cross-examination, Guzman testified that the gun was bronze-like in color) from the waistband of his pants and appeared to arm the gun. Guzman was afraid and thought that defendant was holding him up.

Guzman ran into the street, yelling for help. Defendant ran into an alley, grabbed a bicycle, and rode away. The bicycle was small, “like a kid’s bicycle.” Guzman flagged down a police car and told a Spanish-speaking officer -- apparently Los Angeles Police Department Officer Gabriel Chavez -- what had happened. Officer Chavez went into the alley looking for the suspect. Officer Chavez spotted defendant in the alley. Defendant was dressed in black pants and a purple shirt; he was not wearing a jacket. Within five minutes, Guzman was told that a suspect had been found. Guzman was taken to the alley to view the suspect. Prior to viewing the suspect, Guzman was told that the suspect may or may not be the person who robbed him. The police shined a light on defendant. Guzman identified defendant as the person who tried to rob him. The “image of the person who had attacked [Guzman was] burned into [his] memory.” Guzman also identified defendant at the preliminary hearing and at trial. According to Officer Chavez, defendant was about six feet, two inches tall.

Defendant testified in his own behalf. He admitted that he was convicted of two felonies -- in 1986 and 1988 -- involving sale or possession for sale of cocaine. He denied robbing Zavala or Rich or attempting to rob Guzman. Defendant claimed that he was at his mother’s -- Constance Jones -- house at about 7:00 a.m. on September 3, 2004, and at about 8:30 p.m. on October 1, 2004. He later testified that he did not know where he was on September 3, 2004. Defendant testified that at about 10:00 or 10:30 p.m. on October 12, 2004, he was at a gas station near “King and Figueroa” where he had an incident with a male Hispanic, who was not Guzman. Defendant’s mother, an elementary school teacher, testified that defendant occasionally spent the night at her house in September and October 2004. She could not remember, however, the specific dates defendant stayed with her.

Defendant testified that he had been shot twice and stabbed twice eight years earlier during a robbery. As a result, he suffered continuing medical problems in one of his legs which sometimes impaired his ability to walk. Defendant had “big problems” riding a bicycle, and did not own one. Defendant’s mother confirmed defendant’s claimed injuries, testifying that defendant had been shot and had medical problems with one of his legs. She also testified that he suffered from asthma. Defendant’s mother believed that defendant’s medical problems would prevent him from riding a bicycle. Defendant testified that he was six feet, five inches tall and weighed 310 pounds. Defendant’s mother testified that defendant was 43 years old.

DISCUSSION

I. Sufficiency of the Evidence Supporting Defendant’s Convictions

“‘In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”’ ([People v.] Rowland [(1992)] 4 Cal.4th [238,] 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 99 S.Ct. 2781].) We apply an identical standard under the California Constitution. (Ibid.) ‘In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court “must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738].)” (People v. Young (2005) 34 Cal.4th 1149, 1175.)

In deciding the sufficiency of the evidence, “a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation .] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young, supra, 34 Cal.4th at p. 1181; In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497 [“when the circumstances surrounding the identification and its weight are explored at length at trial, where eyewitness identification is believed by the trier of fact, that determination is binding on the reviewing court. [Citation.]”].)

Zavala identified defendant from a six-pack photographic lineup, in a live lineup, at the preliminary hearing, and at trial. Zavala testified that he recognized defendant immediately in the photographic lineup and he was absolutely sure that the person he identified in the live lineup -- defendant -- was the person who robbed him. Evidence supports the accuracy of Zavala’s identification. Defendant had given Zavala a reason to closely examine defendant’s face -- Zavala testified that when defendant asked him if they knew each other from high school when he exited the doughnut shop, he looked at defendant’s face, trying to remember defendant.

Rich identified defendant from a photographic lineup, a live lineup, at the preliminary hearing, and at trial. Rich testified that he viewed defendant from a distance of about six feet and that he recognized defendant immediately at the live lineup. He was able to recognize defendant immediately because he had been shown photographs at home several times. The person who robbed Rich and Zavala used the same term -- “blast” -- to threaten these victims if they did not comply with his orders.

Guzman testified that defendant stopped about two feet in front of him, that he got a good look at defendant’s face, and that the “image of the person who had attacked [him was] burned into [his] memory.” Within minutes after the attempted robbery, Guzman identified defendant in a field show up. Guzman also identified defendant at the preliminary hearing and at trial.

Defendant does not contend that there was insufficient evidence that Zavala and Rich were robbed or that Guzman was the victim of an attempted robbery.[2] That is, defendant does not contend that there was insufficient evidence as to any particular element of any of the crimes. Instead, he contends that there was insufficient evidence to show that he was the person who committed those crimes. Here, defendant contends that we should reject the victims’ identifications because of conflicts in the evidence and the absence of certain physical evidence.

Defendant contends that the victims’ descriptions of the perpetrator or perpetrators did not match him. Defendant points out that Zavala and Rich testified that the robber was about six feet tall whereas defendant testified that he was six feet, five inches tall. Rich, age 48, described the robber as a young man, but defendant was not young; he was 43 years old. Guzman testified that the person who attempted to rob him was wearing navy blue or black pants and a jacket with a t-shirt underneath. When defendant was arrested within minutes of the Guzman attempted robbery, defendant was wearing black pants and a purple shirt. He was not wearing a jacket or a t-shirt. Defendant contends that, at various times, the victims gave different descriptions of the gun the robber used, and asserts that neither a gun nor a bicycle was recovered following his arrest for the Guzman attempted robbery “even though the police searched the area for about an hour with the assistance of a police helicopter for part of the search.” Defendant further contends that the photographic and live lineups were suspect because the police told Zavala and Rich that they had a suspect in custody before showing them the photographic lineup; Rich testified that the police “pointed out -- they asked me questions, was this the guy” before explaining that he was told to select which one of the persons in the lineup was the robber; Zavala and Rich attended the same live lineup; and Rich was shown photographs at home some time prior to the live lineup.

Defendant’s contentions are based largely on conflicts in evidence that were presented to the jury. We do not resolve such conflicts on appeal. (People v. Young, supra, 34 Cal.4th at p. 1181.) Because defendant has failed to proffer any evidence that demonstrates that the victims’ identifications of defendant were physically impossible or inherently improbable, the victims’ identifications are sufficient evidence to support defendant’s convictions. (Ibid.; In re Gustavo M., supra, 214 Cal.App.3d at p. 1497.)

The record does not support defendant’s contention that the police searched the area where defendant was arrested for about an hour and that neither a gun nor a bicycle was found. There was no evidence about the length of any search, that a search for the bicycle was conducted, or that a bicycle was not found. Officer Chavez testified that he and other officers were at the scene for about 30 minutes to an hour. Officer Chavez did not search for the gun, but believed that other officers did. A helicopter searched the area. A gun was not booked into evidence at the police station.

II. The Trial Court’s Admission of Evidence of Defendant’s Prior Convictions

Defendant contends that the trial court abused its discretion under Evidence Code sections 352[3] and 788[4] when it permitted the prosecution to introduce evidence that he had been convicted of violating Health and Safety Code section 11352 in 1986 and 1988. The trial court properly exercised its discretion.

A. Relevant Proceedings

Defense counsel informed the trial court that she believed that defendant wanted to testify and requested a hearing under Evidence Code section 402 concerning the admissibility of defendant’s prior convictions. At the hearing, the prosecutor stated that defendant had suffered several misdemeanor convictions for being “under the influence,” a 1983 felony conviction for possession of marijuana for sale in violation of Health and Safety Code section 11357, and 1986 and 1988 felony convictions for transportation or sale of a controlled substance in violation of Health and Safety Code section 11352. The trial court also noted that defendant had suffered a conviction for assault with a deadly weapon, which defense counsel stated was a misdemeanor conviction.

The trial court ruled that the prosecution could impeach defendant with his 1986 and 1988 Health and Safety Code section 11352 convictions. In permitting the prosecution to introduce evidence of these convictions, the trial court stated, “The convictions of 1986 and 1988, those are for sales and those are crimes of moral turpitude. Anything further back -- I would allow you to impeach with those two crimes. It seems to me like the crimes are approximately, what is it, 17, 18 years old. He’s been in state prison, although he hasn’t committed any crimes since then; right?”

Defense counsel then objected to the admission of any of defendant’s prior convictions on the grounds that his convictions were remote in time. The trial court responded, “Well, I think that perhaps anything further back than 1986 would probably be too remote because they were primarily possession cases. We’re going all the way back to the assault with a deadly weapon misdemeanor case. That’s over 20 years old. That’s about 23 years ago.

So I think the jury has the right -- we shouldn’t try to hide the ball from the jury to have [defendant] portray himself as somebody that’s never committed a crime of moral turpitude. He obviously has. I don’t think those two convictions are too remote. They certainly bear some relevance to his credibility, and I would allow the -- I don’t think it’s overly prejudicial.

And I don’t think it’s something that wouldn’t necessarily or should necessarily keep him from testifying. You can always come back and say these things happened 17 years ago, but I think the jury has a right to evaluate the testimony of whoever takes the stand in its proper context.”

In response to the prosecutor’s stated desire also to introduce evidence of the 1983 conviction for possession for sale of marijuana, the trial court stated, “I think that’s probably overkill. That’s going a little bit too far. I think the fact that you are going to be utilizing two should be sufficient I think.” Defense counsel stated, “I agree with the court. The 11550’s are not crimes of moral turpitude, and I think anything beyond that is far too remote.” The trial court concluded, “And others are misdemeanors, so in proper context they are somewhat dated. However, I think it would have some relevance on his credibility. The fact that he’s been previously convicted of selling drugs, although it’s somewhat dated, still not so dated that it wouldn’t have some relevance to his credibility.”

During direct examination, defense counsel asked defendant if he had been convicted of two felonies involving cocaine in 1986 and 1988. Defendant testified that he had been so convicted. Defense counsel asked, “For sales or possession for sale?” Defendant responded, “Yeah, it was either one or two.” Defendant then testified that he used drugs back then, but that he had not used drugs for about 15 years and that he had not been arrested for about 18 years. During cross-examination, the prosecutor asked defendant, “you were actually convicted twice of sale and transportation of a controlled substance; isn’t that correct? . . . Two different times. One time in ‘86 and one time in 1988?” Defendant responded, “Probably so.” The prosecutor did not refer to defendant’s prior convictions in closing argument.

B. Application of Relevant Principles

“No witness including a defendant who elects to testify in his own behalf is entitled to a false aura of veracity.” (People v. Beagle (1972) 6 Cal.3d 441, 453, overruled on other grounds in People v. Castro (1985) 38 Cal.3d 301 [211 Cal.Rptr. 719, 696 P.2d 111]; accord People v. Hinton (2006) 37 Cal.4th 839, 888.) Article I, section 28, subdivision (f), of the California Constitution provides, in pertinent part that “Any prior felony conviction of any person in any criminal proceeding . . . shall subsequently be used without limitation for purposes of impeachment . . . in any criminal proceeding.” Nevertheless, “trial courts retain their discretion under Evidence Code section 352 to bar impeachment with such convictions when their probative value is substantially outweighed by their prejudicial effect. [Citation.]” (People v. Clair (1992) 2 Cal.4th 629, 654.) “In exercising its discretion, the trial court must consider four factors identified by our Supreme Court in People v. Beagle (1972) 6 Cal.3d 441, 453 [99 Cal.Rptr. 313, 492 P.2d 1] . . .): (1) Whether the prior conviction reflects adversely on an individual’s honesty or veracity; (2) the nearness or remoteness in time of a prior conviction; (3) whether the prior conviction is for the same or substantially similar conduct to the charged offense; and (4) what the effect will be if the defendant does not testify out of fear of being prejudiced because of the impeachment by prior convictions. [Citation.] These factors need not be rigidly followed. (Ibid.)” (People v. Mendoza (2000) 78 Cal.App.4th 918, 925.)

“[T]there may be no conviction that is per se too remote to be used for impeachment.” (People v. Burns (1987) 189 Cal.App.3d 734, 738.) In determining whether a prior conviction should be excluded as remote, the trial court may consider such factors as: (1) the length of time that has elapsed since the conviction, (2) the length of sentence served on the prior conviction -- “[t]he fact the prior conviction occurred 26 years ago loses most of its impact if the defendant served a 25-year sentence and was arrested for the instant offense a year after his release,” (3) the nature of the conviction -- a crime involving dishonesty is more probative of veracity than some crimes of moral turpitude such as crimes of violence, (4) the age of the defendant at the time the previous crime was committed, and (5) the defendant’s conduct subsequent to the prior conviction. (Ibid.)

We review a trial court’s admission of prior felony convictions for impeachment for an abuse of discretion. (People v. Hinton, supra, 37 Cal.4th at p. 888.) A trial court has abused its discretion when it has acted in “an arbitrary, capricious or patently absurd manner that resulted in a miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316.)

A violation of Health and Safety Code section 11352 involves moral turpitude. (People v. Navarez (1985) 169 Cal.App.3d 936, 949; People v. Castro (1985) 38 Cal.3d 301, 317 [possession for sale of heroin involves moral turpitude].) In claiming that the trial court erred in admitting evidence of his prior convictions for violating Health and Safety Code section 11352, defendant focuses his claim on remoteness and the factors for determining remoteness set forth in People v. Burns, supra, 189 Cal.App.3d at page 738. Here, defendant contends that his prior convictions were remote because they were 16 and 18 years old, he served only two years of a three-year sentence for the two convictions, the prior convictions did not involve dishonesty, he was only in his mid to late 20’s when he committed the prior offenses, and he had not been convicted of any criminal offense after having been released from prison for the prior offenses.

Contrary to defendant’s contention, not all of the factors suggested in People v. Burns, supra, 189 Cal.App.3d at page 738 support a finding of remoteness. Defendant concedes that he was 25 and 27 years old at the time he was convicted in 1986 and 1988. Thus, he was not a minor, but well into adulthood at the time of the convictions. Even defendant’s prior convictions for violating Health and Safety Code section 11352 are remote, remoteness is only one of the factors a trial court is to consider in exercising its discretion to permit impeachment with a defendant’s prior felony convictions. (People v. Benton (1979) 100 Cal.App.3d 92, 97.) Neither the third nor the fourth factors in People v. Beagle -- whether defendant’s prior convictions were for the same or substantially similar conduct to the charged offenses and what the effect would be if defendant did not testify out of fear of being prejudiced because of the impeachment by prior convictions -- supported exclusion of defendant’s prior convictions. (People v. Mendoza, supra, 78 Cal.App.4th at p. 925, citing People v. Beagle, supra, 6 Cal.3d at p. 453.) Although Guzman testified that the area where defendant contacted him was “where they sell drugs” and defendant appeared to Guzman to be drunk or on drugs when defendant attempted to rob him, defendant was charged in this case with robbery and attempted robbery, conduct that is neither the same nor substantially similar to defendant’s convictions for transporting or selling a controlled substance in violation of Health and Safety Code section 11352.

Notwithstanding the trial court’s admission of evidence of defendant’s prior convictions for impeachment, defendant testified at trial. That the trial court’s decision to allow impeachment with defendant’s prior convictions did not deter defendant from testifying supports the trial court’s decision to admit the evidence. (People v. Carpenter (1999) 21 Cal.4th 1016, 1056; People v. Clarida (1987) 197 Cal.App.3d 547, 554.).)

Considering all of the factors in People v. Beagle, supra, 6 Cal.3d at page 453, the trial court did not act in “an arbitrary, capricious or patently abuser manner” in admitting evidence of defendant’s prior convictions. (People v. Jordan, supra, 42 Cal.3d at p. 316.) Had the trial court excluded any reference to any of defendant’s convictions, it was arguable that it would have given defendant’s testimony a “false aura of veracity.” (People v. Beagle, supra, 6 Cal.3d at p. 453; People v. Hinton, supra, 37 Cal.4th at p. 888; People v. Benton, supra, 100 Cal.App.3d at p. 97.)

Defendant contends that the trial court did not exercise its discretion because it seemingly relied only on the crimes being those of moral turpitude. The trial court expressly considered the remoteness of the convictions and their relevance and prejudicial effect. The trial court necessarily rejected defendant’s arguments concerning the remoteness of the convictions and the application of Evidence Code section 352. Thus the trial court weighed the appropriate considerations and properly exercised its discretion.

C. Prejudice

The erroneous admission of a prior felony conviction for impeachment is reviewed for prejudice under California Constitution, article VI, section 13 and People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Castro, supra, 38 Cal.3d at p. 319.) A review of the entire record demonstrates that, even if the trial court erred in admitting evidence of defendant’s prior convictions for impeachment, it is not reasonably probable that a result more favorable to defendant would have occurred had the trial court excluded such evidence. (Cal. Const., art. VI, § 13; People v. Watson, supra, 46 Cal.2d at p. 836; People v. Castro, supra, 38 Cal.3d at p. 319.) The discussion of defendant’s prior convictions on direct and cross examination was brief and the prosecutor did not refer to the convictions in closing argument. The defense was able to point to the dates and nature of the convictions. Also, ample evidence supported defendant’s convictions. As we discussed in connection with defendant’s contention that insufficient evidence supported his convictions, each of defendant’s victims convincingly identified defendant as the person who robbed or attempted to rob them.

III. The Trial Court’s Limitation on Defense Counsel’s Closing Argument

Defendant contends that the trial court abused its discretion when it barred defense counsel from discussing an article in the Los Angeles Times about a person who was incarcerated following a misidentification. The trial court did not abuse its discretion.

A. Relevant Proceedings

In her closing argument to the jury, defense counsel conceded that Zavala and Rich had been robbed and that Guzman had been the victim of an attempted robbery. She focused her argument on attacking eyewitness identifications generally, and the victims’ identifications of defendant in this case.

During closing argument, defense counsel referred to an article that, she stated, had appeared in the Los Angeles Times two weeks earlier. The prosecutor objected on the grounds of improper argument; the trial court overruled the objection. Defense counsel told the jury that the article was “about a man who had been incarcerated for 18 years for a murder that he did not commit, and he had been convicted on the basis of four witnesses on their identification. In fact, the D.A. in the article was quoted as saying -- he was quoted as having argued back then, ‘The only way to bring in better evidence is if we had a movie of it.’

In 1999 two inmates gave statements saying they were involved; the gentleman, Mr. McKinley, was not the third person, and, in fact, they named somebody else. They took the picture of that somebody else to two of the witnesses who had identified Mr. McKinley 18 years ago, and they said, ‘Oh, it’s the guy in the picture; not the guy we said.’ 18 years he spent for something he didn’t do.”

At this point, the prosecutor again objected on the grounds of improper argument. This time, the trial court sustained the objection and instructed the jury to “disregard the comments. There’s been no evidence that any such convictions occurred or did not occur.” Defense counsel stated to the trial court her belief that she was allowed to argue “what’s in a newspaper.” The trial court stated, “Sustained.” Defense counsel then explained to the jury, “I’m not telling you this for the point of how much time, but just showing you with identification there are so many problems with it. It’s such a problem. It’s not good evidence.” Defense counsel continued her argument, setting forth in detail perceived discrepancies in the Zavala’s, Rich’s, and Guzman’s identifications.

B. Application of Relevant Principles

Closing argument “may be based on matters in evidence or subject to judicial notice. It may also refer to matters of common knowledge or illustrations drawn from experience, history, or literature. (People v. Love (1961) 56 Cal.2d 720, 730 [16 Cal.Rptr. 777, 366 P.2d 33].)” (People v. Farmer (1989) 47 Cal.3d 888, 922, overruled on other grounds as noted in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) Counsel may not, however, “dwell on the particular facts of unrelated, unsubstantiated cases.” (People v. Mendoza (1974) 37 Cal.App.3d 717, 725.) Moreover, “[t]here is no rule to the effect that attorneys may always refer to magazine articles in closing argument. . . . [Citation.]” (People v. London (1988) 206 Cal.App.3d 896, 909; contra People v. Guzman (1975) 47 Cal.App.3d 380, 392, disapproved on another ground in People v. McDonald (1984) 37 Cal.3d 351, 371, fn. 18 [208 Cal.Rptr. 236, 690 P.2d 709] [defense counsel should have been allowed to refer to magazine and newspaper articles reflecting illustrations of incidents of misidentification]; People v. Woodson (1964) 231 Cal.App.2d 10, 11-12, 15-17 [defense counsel should have been permitted to refer to a newspaper article to illustrate his argument that convictions based on mistaken identity are common].) “‘[W]hether a particular newspaper or magazine article should be read to the jury, is a matter that is addressed to the sound discretion of the trial court.’ (People v. West (1983) 139 Cal.App.3d 606, 610-611 [189 Cal.Rptr. 36].)” (People v. London, supra, 206 Cal.App.3d at p. 909; People v. Nails (1963) 214 Cal.App.2d 689, 693 [“A trial judge has discretionary power to restrict argument within reasonable limits.”].)

In People v. London, supra, 206 Cal.App.3d 896, London contended that the trial court improperly barred defense counsel from referring in closing argument to an article in Time magazine that reported an instance in which an eyewitness to a crime misidentified a district attorney as the perpetrator. (Id. at p. 909.) The Court of Appeal held that the trial court “properly excluded hearsay about a particular, alleged instance of misidentification which had nothing to do with the case before it.” (Ibid.)

In People v. Mendoza, supra, 37 Cal.App.3d 717, Mendoza was convicted of committing a lewd act on a child under the age of 14. (Id. at p. 721.) On appeal, Mendoza contended that the trial court erred in barring defense counsel from reading two newspaper clippings about unrelated cases in which children were reported to have fabricated accusations against innocent men. (Id. at p. 725.) The Court of Appeal held that the trial court “properly denied defense counsel license to read newspaper clippings about unrelated specific crimes, hearsay material which could only confuse the jury with irrelevant facts. [Citations.]” (Ibid.)

Defendant contends that “the McKinley case was not an unsubstantiated case that might confuse the jury. It was not only a case the trial court would have knowledge of, but also the general public.” According to defendant, the McKinley case was both a “famous” and an “infamous” case of misidentification, “an incident that was of such notoriety that it was common knowledge.” The McKinley case “saturated the media at the time” and was “a story that made national headlines, and was covered by the Los Angeles Times, as well as almost every other media form.” Other than defense counsel’s assertion that the McKinley case was reported in the Los Angeles Times, defendant cites no part of the record that supports any of these contentions.

Defendant also contends that the trial court “neither sought to read the article defense counsel referred to nor did it allow her to offer general evidence that the newspapers are replete with cases where defendants are wrongly convicted by misidentifications.” Defendant’s contention appears to be an attempt to avoid the holding in People v. Farmer, supra, 47 Cal.3d 888, in which the California Supreme Court rejected a claim that a trial court erred in refusing to permit defense counsel to read an article from a popular scientific magazine, holding that the record did not permit it to determine if reading the article would have been proper because Farmer “apparently did not inform the trial court of the contents of the article” and did not provide the Supreme Court with a copy.[5] (Id. at pp. 921-922.) Here, defense counsel did not proffer the article to the trial court and did not attempt or request to offer “general evidence that the newspapers are replete with cases where defendants are wrongly convicted by misidentifications.”

Defendant attempts to distinguish People v. Farmer, supra, 37 Cal.3d 888, on the ground that there was no evidence that the article was a matter of common knowledge, unlike the article in the Los Angeles Times or the McKinley case itself. As discussed, defendant cites no evidence in the record that supports his claim about the notoriety of the McKinley case. Moreover, even if the McKinley case was as widely known as defendant claims on appeal, the Supreme Court’s holding in People v. Farmer did not turn on whether the article or the article’s subject was well known. Whether the article or its subject was well known, the Supreme Court could not determine the merits of the argument without the article before it. (Id. at p. 922.)

Defendant contends that defense counsel did not give detailed or specific facts of the McKinley case and “merely attempted to refer generally to the case.” To the contrary, defense counsel gave detailed and specific facts from the Los Angeles Times article, and even quoted from the article. Because defense counsel’s remarks were about a specific case of misidentification which had nothing to do with the instant case, the trial court could properly bar defense counsel from discussing the Los Angeles Times article in closing argument. (People v. London, supra, 206 Cal.App.3d at p. 909; People v. Mendoza, supra, 37 Cal.App.3d at p. 725.)

C. Prejudice

Even if the trial court erred in the manner in which it limited defense counsel’s closing argument, there was no prejudice. Defense counsel’s closing argument attacked the three victim’s identifications in detail. The trial court instructed the jury with CALJIC No. 2.92[6] concerning the factors it should consider in evaluating eyewitness testimony received for the purpose of identifying defendant as the person who robbed Zavala and Rich and attempted to rob Guzman. Given defense counsel’s argument and the instruction on eyewitness identification, it is not reasonably probable that defendant would have received a more favorable outcome had defense counsel been permitted to discuss the contents of the Los Angeles Times article in closing argument. (People v. Watson, supra, 46 Cal.2d at p. 836.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

[1] All statutory citations are to the Penal Code unless otherwise noted.

[2] In closing argument, defense counsel stated that she had “no doubt that Mr. Zavala, Mr. Rich and Mr. Guzman were victims of crimes. I have no doubt about that whatsoever.”

[3] Evidence Code section 352 provides, “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

[4] Evidence Code section 788 provides, in pertinent part, “For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony . . . .”

[5] In so holding, the Supreme Court stated that a trial court “must review a proffered article to determine whether its contents are within the scope of proper summation.” (People v. Farmer, supra, 47 Cal.3d at p. 922, fn. 7.)

[6] CALJIC No. 2.92 provides:

“Eyewitness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crime charged. In determining the weight to be given eyewitness identification testimony, you should consider the believability of the eyewitness as well as other factors which bear upon the accuracy of the witness’ identification of the defendant, including, but not limited to, any of the following:

The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act;

The stress, if any, to which the witness was subjected at the time of the observation;

The witness’ ability, following the observation, to provide a description of the perpetrator of the act;

The extent to which the defendant either fits or does not fit the description of the perpetrator previously given by the witness;

The cross-racial or ethnic nature of the identification;

The witness’ capacity to make an identification;

Evidence relating to the witness’ ability to identify other alleged perpetrators of the criminal act;

Whether the witness was able to identify the alleged perpetrator in a photographic or physical lineup;

The period of time between the alleged criminal act and the witness’ identification;

Whether the witness had prior contacts with the alleged perpetrator;

The extent to which the witness is either certain or uncertain of the identification;

Whether the witness’ identification is in fact the product of his or her own recollection; and

Any other evidence relating to the witness’ ability to make an identification.