P. v. Nakamura

Filed 9/25/07 P. v. Nakamura CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Charles R. Gill, Judge. Affirmed.

Errol Kiyomasa Nakamura appeals a judgment arising out of his conviction of assault with a deadly weapon with force likely to cause great bodily injury. He contends that (1) the trial court erred in (A) refusing to admit into evidence an unredacted copy of his cell phone record for the date of the incident; (B) refusing to allow him to authenticate the record; and (C) finding that he failed to exercise due diligence relating to the production of a witness for trial; and (2) the prosecutor committed reversible misconduct during voir dire and in closing argument. We find his arguments unavailing and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In the evening of December 24, 2004, Jamar Thorpe, his cousin, his girlfriend (now wife) and his girlfriend's sister were sitting in a movie theater in Mira Mesa, talking as they waited for the movie to begin. An Asian man sitting in front of them turned around and told Thorpe to shut up; when Thorpe protested that he was not trying to start any trouble and that the movie previews had not even started yet, the man said "you don't know who I am[.]" Although Thorpe asked the man to turn around, the man refused, repeatedly saying "don't tell me what to do" and telling Thorpe to "shut the f___ up." The movie started, ending the exchange between the men.

A few minutes later, Nakamura entered the theater and sat down next to the Asian man. The men whispered to each other and then Nakamura began to talk on a cell phone, disturbing others in the theater. Although Thorpe commented about Nakamura's lack of consideration in using a cell phone during the movie, there were no further exchanges between the two groups.

Shortly before the movie ended, Nakamura and the Asian man left the theater. Thorpe and his friends stayed until the end of the movie and, after using the restrooms, were walking back to their car just after 10:00 p.m. when a black Toyota Celica approached them and stopped; the Asian man got out of the driver's side door of the car, pulled out a black martial arts (escrima) stick and approached Thorpe, saying "I bet you'll be quiet now" and "let's see what you've got" while rapping the stick against one of his hands. The man started swinging the stick at Thorpe, who tried to wrest it away.

During the struggle, Nakamura got out of the passenger side of the car and approached Thorpe, hitting Thorpe twice in the head with another escrima stick. Both assailants began hitting and kicking Thorpe repeatedly; one of the attackers hit Thorpe so hard that his escrima stick broke in half, at which point Thorpe lost consciousness. Shortly thereafter, both assailants returned to the car and drove away.

While the attack was still underway, Thorpe's girlfriend's sister ran to a nearby restaurant for help; although the business was closed for the evening, a waiter who was still at work called 911. Police promptly responded to the call, arriving at the scene at 10:10 p.m. After speaking briefly to Thorpe before an emergency crew took him to the hospital for treatment of his injuries, they interviewed other witnesses and recovered a cell phone and the pieces of the broken escrima stick.

San Diego Police Detective Sharlene Ramirez, who was assigned to investigate the matter, determined that the cell phone and the black Toyota Celica belonged to Lawrence Santos (who police suspected to have been the second assailant) and that the broken escrima stick bore Nakamura's fingerprint and palm print. Thorpe and some of the witnesses identified Santos as one of the assailants in a photo lineup, but were unable to similarly identify Nakamura. The district attorney charged Nakamura, who was in the Navy, with assault with a deadly weapon by means of force likely to cause great bodily injury and battery causing great bodily injury. (For unknown reasons, Santos was never charged in connection with the attack.)

At Nakamura's trial in May 2005, the prosecutor introduced evidence of the foregoing and called Santos as a witness; after the court issued a bench warrant to compel his attendance, Santos appeared at the trial, but asserted his Fifth Amendment right against self-incrimination and refused to testify. After the prosecutor granted Santos derivative use immunity, the court ordered Santos to take the stand. Thereafter, Santos testified that Nakamura (who he also referred to as Yoshi) had borrowed his car and his cell phone before going out with another, unnamed Asian friend on the night of the attack and that when he saw Nakamura later that night, Nakamura had a cut lip and bloody shoes and confessed to having assaulted someone. Santos claimed that he was not with Nakamura at the time of the attack, but was instead out with Nakamura's friend, Joanna Valdez.

On cross-examination, Nakamura elicited Santos's admission that he (Nakamura) had his own cell phone and that when Santos talked to the police a few days after the incident, Santos never told them that he had been with Valdez or that Nakamura had confessed to the assault. Santos also admitted that he looked similar to Nakamura. The prosecution also called Valdez as a witness, although the scope of her testimony is not clear from the record before us. Nakamura thereafter called Fernando Alvarez, who worked with him in the Navy, as the sole defense witness. The jury was unable to reach a unanimous verdict and the court granted a mistrial.

At Nakamura's retrial in February 2006, the prosecutor introduced much of the same evidence as in the first trial, but did not call either Santos or Valdez as a witness. The prosecution elicited evidence that beginning six days after the attack, Nakamura had several conversations with his commanding officers or other naval personnel in which he admitted that he was involved in the altercation at the movie theater, although he contended that only his friend had used the escrima sticks during the fight. (Although it is not entirely clear, the record suggests that evidence of these conversations was not introduced during Nakamura's first trial.) Nakamura called Valdez as his sole defense witness; she testified that she had seen him handle the escrima sticks several weeks before the attack occurred and that she had a lengthy cell phone conversation with Nakamura starting at approximately 10:20 p.m. on the night of the attack and he did not sound agitated or upset or make any mention of the incident during their conversation.

The jury found Nakamura guilty of the assault charge and found that he personally used a deadly weapon and personally inflicted great bodily injury during the course of the assault; apparently following the prosecutor's suggestion during closing argument that it should convict Nakamura of the assault count and "[not] bother with [the battery count]," the jury did not make any findings on the battery charge. The court suspended sentence and placed Nakamura on three years' formal probation subject to certain conditions, including 365 days' custody in the county jail. Nakamura appeals.

DISCUSSION

1. Trial Court's Evidentiary Rulings

A. Refusal to Admit Nakamura's Cell Phone Bill or to Allow Him to Authenticate It

Prior to trial, Valdez spoke to defense counsel, who inquired whether she recalled having talked to Nakamura on the phone on the night of the incident. Counsel then showed Valdez a document, identified as a "copy of . . . Nakamura's cell phone bill" for December 2004, which refreshed her recollection that she had in fact had such a conversation with Nakamura. The prosecutor requested a copy of the document, but defense counsel refused to produce anything more than the portion of the phone bill that showed the call to Valdez on the night of the attack, asserting that Nakamura had a Fifth Amendment right to refuse to disclose the remainder of the document. The court denied a subsequent motion by the prosecutor to compel production of the entire document. The prosecutor renewed his request for the unredacted document in his trial brief and alternatively requested that the court hold an evidentiary hearing on the matter before the defense called Valdez to testify or made any reference to her expected testimony in opening argument.

On the third day of trial, the prosecutor reasserted his entitlement to a copy of the unredacted document, which had been given to Valdez to refresh her memory, pursuant to Evidence Code section 771. Over a defense objection, the court ordered production of the entire document unless counsel planned to withdraw Valdez as a defense witness. Later that day, defense counsel called Valdez to testify about her conversation with Nakamura on the evening of the assault. In cross-examining Valdez, the prosecutor elicited Valdez's testimony that she had not remembered talking to Nakamura on the phone that night until she reviewed the document.

The next day, defense counsel asked to introduce the unredacted cell phone bill into evidence, apparently to establish that Nakamura did not make any phone calls between 7:21 p.m. and 10:21 p.m. (contradicting the witness testimony that he talked on his cell phone during the movie) and that Nakamura called Santos at 10:16 p.m. (suggesting that he was not with Santos at the time of the attack). The prosecutor objected that the document had not been authenticated and that its use to refresh Valdez's memory did not render it admissible as evidence of matters other than her phone conversation with Nakamura. Defense counsel took the position that the prosecutor had essentially stipulated to the authenticity of the document, making it admissible under Evidence Code section 1414, and alternatively offered to call Nakamura as a witness in an Evidence Code section 402 hearing to authenticate the document. The prosecutor responded that Nakamura's taking the stand to authenticate the record would constitute a waiver of his Fifth Amendment rights and that in any event the record would be cumulative of Valdez's testimony regarding the 25 minute phone call with Nakamura on the night of the attack.

After considering the issue overnight, the court declined to admit the unredacted cell phone record, concluding that the defense had failed to timely disclose it to the prosecutor, that the record's probative value was substantially outweighed by the prejudice and confusion of authenticating and introducing it and that the defense would be unable to authenticate it with Nakamura's testimony. At defense counsel's request, however, the court did admit that portion of the document that showed the phone call to Valdez.

Nakamura contends that the trial court erred by refusing to admit the unredacted cell phone bill into evidence and, in doing so, violated his constitutional rights to present a defense, to due process and to a fair trial. Specifically, he contends that the court erred in failing to admit the phone bill under Evidence Code section 1414, which deals with a foundational issue relating to the admissibility of a writing, i.e., authentication. (Evid. Code,  250, 1400.)

A writing "is authenticated by testimony or other evidence 'that it accurately depicts what it purports to show.'" (People v. Mayfield (1997) 14 Cal.4th 668, 747, quoting People v. Bowley (1963) 59 Cal.2d 855, 859.) In accordance with Evidence Code section 1414, "[a] writing may be authenticated by evidence that: [] (a) The party against whom it is offered has at any time admitted its authenticity; or [] (b) The writing has been acted upon as authentic by the party against whom it is offered." However, although Nakamura contends that the prosecutor stipulated that the proffered exhibit was his cell phone bill, the court twice implicitly rejected his characterization of the prosecutor's statements regarding the document, a factual determination that is borne out by the record.

Nakamura makes a related argument that the trial court erred in not allowing him to testify regarding the authenticity of the phone bill. However, his argument is not well-taken. (See Evid. Code,  1271 [evidence of a writing made as a record of an act is admissible pursuant to an exception to the hearsay rule if: (a) the writing was made in the regular course of business; (b) at or near the time of the act; (c) the custodian or other qualified witness testifies to its identity and the mode of its preparation; and (d) the sources of information and method and time of preparation were such as to indicate its trustworthiness].)

Although Nakamura could have properly testified about whether he had used his cell phone at the time Thorpe and the other witnesses testified that the assailant was on a cell phone in the movie theater, defense counsel did not seek to have him so testify, perhaps because doing so would risk waiving his right against self-incrimination. (See Mitchell v. United States (1999) 526 U.S. 314, 321-323; Brown v. United States (1958) 356 U.S. 148, 154-155 [a defendant waives the privilege as to matters about which he testifies and the scope of the waiver is determined by the scope of relevant cross-examination].) Further, Nakamura could have authenticated the document by subpoenaing his cell phone company for a custodian's declaration setting forth the requisite elements therefor (see Evid. Code,  1560-1562), but did not do so.

Under these circumstances, we conclude that the trial court did not abuse its discretion or violate Nakamura's constitutional rights by refusing to let him testify regarding the authenticity of the cell phone record and by refusing to admit the unredacted cell phone record based on the absence of sufficient foundational evidence. The trial court's refusal to admit the unredacted record was also justified based on its finding that Nakamura failed to comply with his statutory obligation to identify and timely disclose to the prosecutor those portions of the document that he intended to introduce at trial. (Pen. Code,  1054.3, subd. (b), 1054.7; see Cal. Const., art. I,  30(c); generally Izazaga v. Superior Court (1991) 54 Cal.3d 356, 364-372 [statute requiring a criminal defendant to produce to the prosecution third party statements on which he plans to rely at trial does not violate his rights against self-incrimination, to due process and to effective assistance of counsel].)

C. Refusal to Admit Santos's Testimony from the Prior Trial

On November 15, 2005, Nakamura subpoenaed Santos to testify at trial and, in mid-January 2006, defense counsel spoke to Santos, who agreed that he would testify at the retrial and be on telephone standby as of January 30. (All subsequent date references are to 2006 except as otherwise noted.) After trailing a few days, the retrial began on February 3; that day, the court instructed defense counsel to notify it promptly if he planned to call Santos as a witness so that it could appoint counsel for Santos. A jury was empanelled on February 7.

On February 8, the prosecution informed the court and defense counsel that he would be calling his last witnesses the next morning. The next day, after the prosecution rested its case subject to a motion to admit certain items into evidence, defense counsel told the court that Valdez had schedule conflicts for that afternoon and that although he could have her appear, he preferred to have Santos testify at that time. The prosecutor objected that it was extremely unlikely Santos would appear and the court suggested that Valdez be made available to testify.

Over the lunch break, defense counsel called Valdez and attempted, unsuccessfully, to reach Santos's cell phone. Counsel also spoke to Santos's commander, who informed him that Santos was not then deployed and would appear to testify; he also contacted conflicts counsel who had represented Santos in the first trial. After Santos failed to appear for the afternoon session, defense counsel requested that the court issue a warrant to compel Santos's attendance. The court declined to issue the warrant, but deferred the matter for consideration until the next day.

Although Santos failed to appear the next morning, Nakamura did not renew his request for a warrant, but instead sought to introduce Santos's testimony from the first trial. He argued that the prior testimony was admissible under Evidence Code section 1290 because Santos was unavailable despite his due diligence in attempting to obtain Santos's presence through the issuance of the subpoena. The court, however, concluded that Nakamura had not exercised due diligence, found the hearsay exception inapplicable and declined to admit Santos's prior testimony. Nakamura contends that the trial court erred in doing so.

To establish the admissibility in a criminal case of a declarant's testimony given in a prior proceeding, the proponent of such evidence must establish that the declarant is "unavailable" to testify in the current proceeding. (Evid. Code,  1291.) A declarant is "unavailable" for this purpose only if the proponent of the testimony exercised reasonable diligence but was unable to procure his attendance. (Evid. Code,  240, subd. (a)(5).) What constitutes due diligence to secure the presence of a witness depends upon the facts of the individual case. (People v. Cromer (2001) 24 Cal.4th 889, 904.) Factors to be considered in determining whether the proponent acted with reasonable diligence include the importance of the witness's testimony (People v. Louis (1986) 42 Cal.3d 969, 991) and the efforts employed by the proponent to secure the witness's presence, including the timeliness of the search (People v. Sanders (1995) 11 Cal.4th 475, 523) and the competence with which leads were explored (People v. Enriquez (1977) 19 Cal.3d 221, 236-237, overruled on other grounds by People v. Cromer, supra, 24 Cal.4th at p. 901, fn. 3).

Here, we need not reach the issue of whether the trial court erred in finding that defense counsel failed to act diligently to obtain Santos's presence at trial, because we conclude that any such error would have been harmless. In essence, Santos testified that he was not involved in the altercation, but that Nakamura was. Although Nakamura later attempted to impeach Santos as to Santos's whereabouts at the time of the offense and the credibility of certain statements Santos made to the police, he did not in any way impeach Santos's statements implicating him in the crime. Further, in light of the evidence that Nakamura essentially confessed his involvement in the attack to his superiors, it is not reasonably probable that the admission of Santos's prior testimony would have led to an outcome more favorable to him. (Evid. Code, 354; see generally People v. Bradford (1997) 15 Cal.4th 1229, 1325.) Accordingly, the exclusion of Santos's prior testimony does not support a reversal of the judgment.

2. Prosecutorial Misconduct

A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Morales (2001) 25 Cal.4th 34, 44.) Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to convince either the trial court or the jury. (Ibid.; People v. Guerra (2006) 37 Cal.4th 1067, 1124.)

The applicable standard of appellate review for assessing prejudice depends on whether the misconduct amounted to federal constitutional error. If it did, we must reverse unless the prosecutor's error was harmless beyond a reasonable doubt. (See People v. Estrada (1998) 63 Cal.App.4th 1090, 1106-1107, citing Chapman v. California (1967) 386 U.S. 18, 24.) If the error does not rise to that level, reversal is warranted only if it is reasonably probable that the prosecutor's behavior materially affected the jury's evaluation of the evidence or its verdict. (See People v. Espinoza (1992) 3 Cal.4th 806, 820-821, citing People v. Watson (1956) 46 Cal.2d 818, 835; People v. Wagner (1975) 13 Cal.3d 612, 621.)

Here, Nakamura contends that the prosecutor engaged in intentional discrimination against heterosexuals during voir dire and made improper statements during closing argument. We address these contentions in turn below.

A. Voir Dire

In response to Nakamura's motion for a new trial, the prosecutor inadvertently disclosed to defense counsel a draft opposition to the motion that included notations suggesting the prosecutor felt it would be beneficial to have homosexuals on the jury in a criminal case arising out of an attack that occurred at the Torrey Pines golf course. Based solely on these notes, Nakamura asserts that the prosecutor intentionally discriminated against heterosexuals during the jury selection process in his case and that the trial court erred in not conducting an evidentiary hearing into the matter when he raised it in his reply papers.

However, the notations on which Nakamura relies clearly reference, on their face, a criminal case other than the one against him. Further, Nakamura did not below, nor does he now, identify any affirmative conduct by the prosecutor during voir dire to support even an inference that the prosecutor was attempting to exclude heterosexuals from the jury panel. Finally, no circumstances involved in this case would provide a motive for the prosecutor to engage in such conduct. Nakamura bears the burden of establishing that the prosecutor engaged in prejudicial misconduct (People v. Williams (1997) 16 Cal.4th 153, 255) and he simply has not met that burden relating to the prosecutor's conduct during voir dire in this case.

B. Closing Argument

Prosecutors are given "wide latitude" in arguing their cases and are permitted to do so vigorously, so long as their arguments constitute fair comments on the evidence and reasonable inferences to be drawn therefrom. (People v. Hill (1998) 17 Cal.4th 800, 819.) However, prosecutors are also "held to a standard [of conduct] higher than that imposed on other attorneys" in light of their "unique function . . . in representing the interests, and in exercising the sovereign power, of the state." (Id. at p. 820.) Nonetheless, the concept of "[p]rosecutorial misconduct implies a deceptive or reprehensible method of persuading the court or jury." (People v. Price (1991) 1 Cal.4th 324, 448.)

When a claim of prosecutorial misconduct "focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Samayoa (1997) 15 Cal.4th 795, 841; see also, e.g., People v. Smithey (1999) 20 Cal.4th 936, 960.) In answering that question, we must examine the prosecutor's statement in the context of the whole record, including arguments and instructions (People v. Morales, supra, 25 Cal.4th at p. 44), and cannot "lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. (People v. Frye (1998) 18 Cal.4th 894, 970; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 647.)

Here, Nakamura contends that the prosecutor committed misconduct during closing argument by (i) repeatedly referring to matters not in evidence; and (ii) commenting on defense strategies used to defend against assault cases.

(i) References to Facts not in Evidence

A prosecutor's reference in closing argument to facts that are neither established by the evidence nor matters of common knowledge will frequently constitute misconduct. (See People v. Pinholster (1992) 1 Cal.4th 865, 948; also People v. Cunningham (2001) 25 Cal.4th 926, 1026.) Here, Nakamura argues that the prosecutor improperly referred to statements he made to police and to Naval Criminal Investigative Service (NCIS) officials, which the parties had stipulated were inadmissible. However, Nakamura mischaracterizes the prosecutor's arguments.

Although the prosecutor referred to the fact that the police contacted Nakamura (a fact that was supported by the record), he never referred to any statements Nakamura made during such contacts. Further, although the prosecutor repeatedly mentioned Fernando Alvarez's statements to NCIS officials and Nakamura's statements to his superiors, the only reference to any statements by Nakamura to NCIS officials occurred when the prosecutor misspoke; defense counsel immediately objected to the prosecutor's misstatement and the prosecutor corrected himself, clarifying that Nakamura had confessed his involvement in the altercation to his naval supervisors, not to NCIS officials.

Under these circumstances, and in light of the instruction given to the jury that counsel's arguments could not be considered as evidence, we conclude that the prosecutor's comments did not constitute misconduct.

(ii) Comments on Defense Strategies

During closing argument, the prosecutor told the jury that, from a defense perspective, there were "only so many ways to beat" assault and battery charges and "only certain ways to escape the proof" of such charges. He further explained the defense might argue, for example, that the evidence failed to establish one or more elements of the charges, that the defendant was acting in self-defense or, as he expected in this case, that the defendant was not the one who committed the offenses. Nakamura challenges the propriety of these statements, contending that the prosecutor was improperly referring to his own experience with such cases or offering his own personal opinions about such cases.

The law is clear that a prosecutor should not assert either arguments that are based on his outside experience or personal beliefs that appear to be based on information available to him that has not been introduced at trial. (People v. Farnam (2002) 28 Cal.4th 107, 200; People v. Frye, supra, 18 Cal.4th at p. 975.) Assuming, without deciding, that the prosecutor's arguments to the jury were inappropriate under this standard, we nonetheless conclude that the arguments were not of such a nature as to create a reasonable possibility that the jury would have reached a different result in their absence. The statements did not suggest that the prosecutor was aware of evidence relevant to the current charges that was not introduced to the jury; in fact, as the prosecutor himself admitted, they related to matters that had nothing to do with Nakamura's defense of this case. In light of the strength of the prosecution's evidence, there is no reasonable possibility that the jury would have reached a different result if the prosecutor had omitted the challenged arguments. Accordingly, the statements do not support a reversal of the judgment.

DISPOSITION

The judgment is affirmed.

McINTYRE, J.

WE CONCUR:

HALLER, Acting P.J.

IRION, J.

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