P. v. Ta
Filed 6/21/12 P. v. Ta CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
HUAN TA,
Defendant and Appellant.
G045658
(Super. Ct. No. 10WF0176)
O P I N I O N
Appeal
from a judgment of the Superior Court of
County, Steven D. Bromberg, Judge. Affirmed as modified.
Phillip
I. Bronson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Gil Gonzalez and
Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Huan Ta was convicted by a jury of
§ 245, subd. (a)(1)) and battery with serious
§ 243, subd. (d)). He admitted
several enhancements for prior convictions and commitments to state
prison. He was sentenced to the upper
term of four years on the aggravated assault, a term that was doubled because
of his two prior strike convictions. The
same sentence computation was applied to his battery with serious injury term,
that sentence ordered to run concurrently.
Additionally, the court imposed one-year enhancements for appellant’s
two prior state prison commitments and
an additional 16 months for one of the two unrelated driving under the
influence charges (Veh. Code, § 23152, subd. (a), punishments increased
under the Three Strikes Law) he pled guilty to, and stayed the same sentence on
the second. Appellant’s total term came
to 11 years and 4 months. The court
awarded 519 days of actual custody credits and 77 days of conduct credits for a
total award of 596 days against his sentence.
Ta complains of two instances of
prosecutorial misconduct in closing argument and a miscomputation of his
presentence custody credits. He is right
about the credits, and we order 258 days added to the 519 originally
computed. But the first putative
misconduct assignment fails on its merits and the second was cured by an
admonition by the trial court, so we affirm his conviction.
DISCUSSION
I
Use of Inappropriate Simile
Since appellant’s contentions are not
fact-related, we need only note that appellant was involved in a bar fight and
identified as one of the men responsible for badly beating Than Tran. Appellant does not contest the adequacy of
the evidence upon which he was convicted, but objects to two points made by the
prosecutor during her closing argument.
Appellant’s primary contention is that the
prosecutor committed misconduct by using a simile involving filling a car with
gasoline: “The prosecutor engaged in
misconduct by misstating the law on reasonable doubt.†His complaint is that “the prosecutor
referred to the ‘gasoline example’ in the context of reasonable doubt.†In fact, the prosecutor did not do so. She started to, but was stopped by defense
counsel’s objection and the trial court’s ruling sustaining that
objection. What she got out was not
enough for us to completely evaluate it, but it seems not only harmless but
probably helpful to the defense.
What happened was the prosecutor first
discussed gasoline in explaining circumstantial evidence to the jury. She talked about the task of filling a car
with gasoline, “You didn’t test the gasoline, you didn’t see the gasoline go
in, but based upon everything that you do when you load up your car with
gasoline you know it’s gasoline beyond a reasonable doubt. And that[’s] all circumstantial
evidence.†So this reference to the
“gasoline example†was in the context of circumstantial evidence. To that end, it was an unobjectionable
argument.
Shortly thereafter, the prosecutor began
discussing reasonable doubt and returned to the gasoline example: ““That is the area where you’re going to have
to decide do you have an abiding conviction, do you know that the defendant
committed the crime based upon all the evidence, do you feel comfortable. You do it every day. It’s like the gasoline example. Is it possible that’s not gasoline? Yeah, it’s possible. Can you imagine that somebody put something
else in that gasoline container? Yeah,
you can imagine that.â€â€™â€ At this point
an objection was interposed and a hearing held in chambers.
Trial counsel’s objection was that the
gasoline example “waters down†reasonable doubt. He complained that it trivialized the jury’s
decision by making it sound like “an everyday decision†instead of “a very
important decision†employing the highest standard of proof in the law. But if he understood the example as
suggesting a lighter burden on the prosecution than the law actually imposes,
he seems to have misapprehended the only way this analogy could have turned
out.
Indeed, if the prosecutor had been allowed to
finish this simile, she could only have come to grief. If the jury thought they had to be as sure
about the defendant’s guilt as they were that the liquid that comes out of a
gasoline pump and powers their automobile is gasoline, they would almost
certainly have acquitted. We’re
confident none of these jurors had ever had an experience in which
pump. We have looked in vain – in both
law and literature – for any example of anything other than gasoline coming out
of a gas pump.
So a prosecutor who told a jury they should
measure reasonable doubt by that standard would almost certainly fail. Very few prosecutions provide evidence that
strong. Telling a jury that level of
certainty had to be reached to prove something beyond a reasonable doubt would
be perilously close to directing a verdict of acquittal.
We need not, therefore, spend a great deal of
time with whether this argument rises to the level of reversible prosecutorial
misconduct. It is not misconduct of any
kind. It was a perfectly appropriate argument
with regard to circumstantial evidence and the fragment that was presented
during the reasonable doubt discussion – left unfinished – could only have
helped the defense. The court refused an
admonition about the fragment, but gave the jury the standard CALCRIM No. 220
instruction on reasonable doubt. It told
the jury that, “Proof beyond a reasonable doubt is proof that leaves you with
an abiding conviction that the charge is true.â€
There is nothing to suggest misinterpretation of the prosecutor’s
arguments caused the jury to disregard this instruction.
II
Comment on Witness’s Imagined Fear of
Testifying
A somewhat closer call is Ta’s complaint the
prosecutor committed misconduct by “appealing to the sympathy and passion of
the jury.†This argument is based on the
prosecutor’s explanation of fragmentary and self-contradictory testimony by
eyewitness Anna Pham as, “This is what happens when somebody is afraid to
testify in a criminal case.â€
name="_ftnref1" title="">[1]
When the prosecutor tried to explain the
it on her fear, defense counsel objected.
In fact, counsel interposed a speaking objection, following the
statement of his legal grounds for the objection with a reminder to the jury
that, “There is no evidence she was afraid.
And I think it’s improper and violates Mr. Ta’s due process
rights.†The trial court sustained the
objection and reiterated what the jury had already heard from defense counsel,
admonishing them that there was no evidence the witness was afraid. Defense counsel did not request a stronger or
more detailed admonishment, but appellant complains the admonition was
insufficient because the prosecutor’s statement was highly inflammatory in that
it implied, “that appellant was a violent and dangerous man whom Pham had good
reason to fear and this was the reason her testimony veered away from what she
had told to [O]fficer Capps, and secondly, that appellant had threatened Pham
with harm if her testimony did not veer away from the statement that she had
given to [O]fficer Capps.â€
This is an awful lot to get out of a
suggestion the witness was afraid.
We simply find nothing in that statement that
implies “appellant was a violent and dangerous man whom Pham had good reason to
fear.†Nor do we see any suggestion the
witness was threatened. People can be
afraid to testify without any threat from the other side, and commenting on
that fear is not the same as saying the witness “had good reason to fear.â€
The argument was improper. There was simply nothing to back it up. As the court recognized during a sidebar, it
was pretty clear the witness “does not want to be here†and equally clear she
was testifying from a “selective memory.â€
But in the absence of any testimony connecting her discomfiture to fear,
the prosecutor could not attribute those things to fear. But the prosecutor did not attribute that
fear to appellant, and did not remotely suggest it was well-founded fear. The idea that she was actually threatened
with harm by appellant is as bereft of foundation as the prosecutor’s argument
she was afraid.
Defense counsel said there was no evidence
she was afraid and the court backed him up.
The court twice told the jury there was no evidence of fear on her
part. And contrary to appellant’s
argument, this was not an inflammatory statement that could not be overcome
with an admonition. Had the prosecutor
made the allegations attributed to her – about a threat having been made
against the witness by appellant and the witness having good reason to be
afraid that threat would be carried out because appellant was violent and
dangerous – we might feel otherwise. But
she didn’t, and the court’s admonition seems to us – as it apparently did to
appellant’s trial counsel – to have been the proper response.
The primary case authority relied upon by
appellant in no way undercuts our confidence in the trial court’s resolution of
the issue. As pointed out by appellant,
the California Supreme Court, in People
v. Pantages (1931) 212 Cal. 237, 249, noted that “repeated acts of
misconduct of the same tenor may present a situation radically different from a
single isolated transgression of the same general nature; . . .†Here we had a single, isolated
transgression. The trial court handled
it appropriately.
III
Incorrect Limitations on Presentence Custody
Credits
Appellant’s final argument fares better than
his first two. He correctly argues the
trial court erred in limiting his presentence custody credits to 77 days,
applying the 15 percent limit required by Penal Code section 2933.1. As the Attorney General concedes, appellant’s
conviction for battery with serious bodily injury does not qualify as a
“violent felony†under Penal Code section 2933.1, so the limitation should not
have been applied. As was held in
Cal.App.4th 527, 531, “[B]attery with serious bodily injury cannot qualify
as a violent felony . . . even if it includes a great bodily injury allegation
under [Penal Code] section 12022.7, unless the crime was committed under
circumstances involving domestic violence.â€
Both sides now agree appellant should have
received 777 days of credits under Penal Code section 4019, subdivisions (b)(2)
and (c)(2) which give him 2 days credit for every four days served – a total of
258 days of credits added to his 519 spent in custody. The judgment of the court, so modified, is
affirmed.
BEDSWORTH,
ACTING P. J.
WE CONCUR:
MOORE, J.
IKOLA, J.
name="_ftn1" title=""> [1] The Attorney General inexplicably
fails to respond to this argument. There
is, however, no concession of the point, so we are required to decide it
without the Attorney General’s assistance.
