P. v. Williams

Filed 6/8/07 P. v. Williams CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge.

Kim Malcheski, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant John Charles Williams was convicted by jury trial of second degree murder for the shooting of Leland Terrell. On appeal, he contends that the prosecutor committed six instances of misconduct. We affirm the judgment.

PROCEDURAL SUMMARY

On October 6, 2005, the district attorney charged defendant with one count of murder (Pen. Code,  187, subd. (a)).^[1] A jury found defendant guilty of second degree murder, found true the firearm use allegation ( 12022.53, subd. (d)), but found not true the gang allegation ( 186.22, subd. (b)(1)). The trial court sentenced defendant to 15 years to life for the murder and 25 years to life for the firearm use allegation.

FACTS

On September 3, 2005, A. had a small party in Leland Terrells backyard. A. invited only a few friends and family.

Later in the evening, defendant and six of his friends arrived at the party although A. had not invited them. A. was concerned because defendant and some of his friends were Westside Crips and some of her friends at the party were affiliated with the rival Eastside Crips. She told one of defendants friends to ask his group to leave because people were already arguing and saying gang-related things, such as Westside, Fuck the Egg, Eastside Killer, ESK, Fuck the Weak, and Dub SK.^[2] A. tried to separate people and she told defendant to leave. A.s brother, B., came outside and started arguing with defendant. Defendant lifted his shirt and A. saw the handle of a gun in his waistband. At least one other person in defendants group also had a gun.

A.s friend was trying to move people into the house. She pushed B. inside the house. Leland came outside and told everyone to leave. Most of defendants group left, but defendant and one friend, X., remained. Leland said, [G]et the fuck out of my backyard. Defendant and Leland exchanged words and may have engaged in a physical fight. A. heard X. say, Im down for whatever, and she saw defendant grab at something at his waist. Then defendant and X. started to run out of the backyard and down the side yard toward the front. Leland and two friends, C. and D., followed them.^[3]

Defendant tripped over a green trash can. Leland told him to get up. When defendant got up, he pulled a dark revolver from his waist. He began to run and shot back toward Leland, hitting him in the head. D. was less than 10 feet from Leland when he was shot. D. tried to catch him as he fell to the ground. A. heard the shots, then came around the corner and saw D. crouched next to Leland, holding his head in his arms.

Defense Evidence

Defendant testified neither he nor his friends had guns that evening. Leland, however, was armed and fired his gun. It appeared to defendant that Leland was chasing them with the gun. Defendant did not see who shot Leland.

DISCUSSION

In general, a prosecutor commits misconduct by using deceptive or reprehensible methods of persuasion. (People v. Barnett (1998) 17 Cal.4th 1044, 1133.) On review, even when we conclude the prosecutor committed misconduct, we reverse the judgment only if it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the misconduct. (Ibid.; People v. Watson (1956) 46 Cal.2d 818, 836.) In some cases, a prosecutors misconduct denies the defendant a specific federal constitutional right, or implicates the defendants constitutional rights because it is so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. In those cases, we must reverse the judgment unless we are satisfied beyond a reasonable doubt that the misconduct did not affect the verdict. (People v. Harris (1989) 47 Cal.3d 1047, 1083-1084; Chapman v.California (1967) 386 U.S. 18, 24.)

To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. [Citation.] [Citations.] (People v. Bradford (1997) 15 Cal.4th 1229, 1333.) Here, defense counsel did not object to some of the alleged instances of misconduct. We consider the merits of defendants claim, however, to forestall a claim of ineffective assistance of counsel.

I.

Defendant contends the first instance of prosecutorial misconduct occurred when the prosecutor asked him questions on cross-examination regarding why he had been kicked out of high school, followed by many allegedly irrelevant questions about a fight he got into with a particular boy. He argues there was no offer of proof that this fight in high school was gang related or otherwise relevant, and therefore the prosecutor committed misconduct by introducing the evidence to show defendant had a violent character.

Defendant fails to note that he brought up the fight during direct examination. He testified that he knew B. because of an incident in high school when he got in a fight with another dude and [B.] was on the outside of the fight agitating and yelling out stuff. On cross-examination, the prosecutor followed up on that testimony when she stated, You told this jury about a fight that you had gotten into. She asked if the fight occurred in school, what it was about, and what B. had done to agitate him. This was not misconduct.

We also note that evidence defendant had been kicked out of regular high school due to nonattendance was harmless in light of defendants volunteered testimony regarding the company he kept and what he did with his time (see infra).

II.

Defendant argues the prosecutor repeatedly made sarcastic comments in response to [defendants] answers to her questions on cross-examination. He asserts that although he was extremely polite, the prosecutor twice responded to his answers with, Really. This response, he maintains, was designed to communicate to the jury the prosecutors disbelief in defendants answers.

When defendant testified that Leland fired shots and was chasing him with a chrome revolver, the prosecutor asked, What caliber? Defendant answered, I wasnt up on it to know like what caliber. I just know it was a chrome revolver. The prosecutor responded, Really. [] Isnt it true that you know a lot about guns?

Later, after defendant had already testified he was a Westside Crip gang member, the prosecutor asked him if members of his gang wore turquoise blue as their identifying color. Defendant responded, If thats what they wear. The prosecutor said, Really. [] Well, do you remember being contacted on May 15th, 2005, by Officer Findley and you were in a car and there was a turquoise bandana that was in the vehicle, as well? Defendant claimed the bandana was for a girls hair. The prosecutor again asked, Is turquoise blue the color of the Westside Crips? Defendant again answered, If thats what they wear. The prosecutor responded, Well, youre a member of the gang. Dont you know what the gang wears, since youre a member of the gang? Defendant said, I just knew Crips wear blue.

In both instances, the prosecutor was attempting to impeach defendants testimony. We find her use of the expression Really innocuous and inoffensive, particularly given that the record as a whole reveals a trial conducted with impressive civility and courtesy.

III.

Defendant complains that the prosecutor repeatedly asked him if he shot Leland. He contends the repeated questions were argumentative and amounted to misconduct. He points to this excerpt from his cross-examination:

Q. So youre telling this jury that you didnt shoot Leland Terrell.

A. Yes, maam.

Q. So did you shoot Leland Terrell in self-defense?

A. I didnt shoot Leland Terrell.

Q. So did you shoot him in self-defense?

A. I didnt shoot him.

Q. So the answer is no.

A. I didnt shoot him.

Q. So you werent defending yourself then.

A. I didnt shoot him.

Q. Did Leland Terrell -- did he provoke you into killing him?

A. He didnt provoke me into anything. I didnt shoot him.

A prosecutor is given wide latitude in the cross-examination of a defendant who denies committing the crime of which he is charged. (People v. Lynn (1971) 16 Cal.App.3d 259, 271 [where defendant makes a general denial of the crime charged, the permissible scope of cross-examination is very wide].) This cross-examination did not constitute misconduct. And, even assuming it was misconduct, it had no ill effect. Indeed, defendant steadfastly denied shooting Leland. Thus, it is not reasonably probable that a result more favorable to the defendant would have been reached had the prosecutor not repeatedly questioned him as she did. (People v. Barnett, supra, 17 Cal.4th at p. 1133; People v. Watson, supra, 46 Cal.2d at p. 836.)

IV.

Defendant contends the prosecutors questions regarding what kind of people he associated with were intended to elicit other-crimes evidence to attack his character. He claims it was improper for the prosecutor to ask whether he smoked marijuana, drank alcohol, went to school, and was employed. The following occurred:

Q. Now, since youre a member of this gang, isnt it true that the Westside Crips, that they -- theres certain crimes that they do? [] Isnt that correct?

A. I have no acknowledgment to that.

Q. You have no acknowledgment to that. Okay. Do the Westside Crips sell drugs?

A. I dont know if thats what the Westside do. I know certain people do that, though.

Q. Certain people in the Westside do that?

A. I really dont hang around people like that.

Q. [] Havent you been contacted before by police when youve been in the company of people who were arrested for selling cocaine base or crack cocaine? [] In other words, havent you been hanging around people and those people have been selling crack cocaine?

A. No, I remember them finding some drugs in a car, but nobody was selling it.

Q. Have you known Westside Crips to sell crack cocaine?

A. No, not -- I dont hang around people like that, so I wouldnt know what they do.

Q. What kind of people do you hang around with?

A. People that just sit around and drink and smoke.

Q. You drink and you smoke?

A. Yeah.

Q. Is that what gang members do?

A. I dont know what gang members do. I know thats what I do.

Q. Do you have a job?

A. No, maam.

Q. Do you go to school?

A. No, maam.

Q. So you sit around drinking and smoking?

A. Yes, maam.

Q. What do you smoke?

A. Weed.

Q. Is that marijuana?

A. Yes, maam.

Q. And do you do that with your fellow Westsiders?

A. Nah, I do it by myself most of the time.

Q. You drink by yourself most of the time?

A. Yeah.

Q. And you smoke marijuana by yourself most of the time?

A. Yes, maam. (Italics added.)

During cross-examination, defendant claimed he had no knowledge of certain activities or characteristics of the Westside Crips. He alternatively admitted and denied he was a member of the gang. The prosecutor attempted to establish he was an active Westside Crips member by asking about his activities and his knowledge of the gangs activities. Defendant denied associating with people who sold cocaine and he offered evidence that he associated with people who just sat around and drank and smoked marijuana; the prosecutor did not ask defendant if he and his associates just sat around and drank and smoked marijuana, and it was not misconduct to follow up on it. Evidence that defendant did not work or go to school paled in comparison to the evidence he had already offered on his own. Any misconduct was therefore harmless. (People v. Barnett, supra, 17 Cal.4th at p. 1133; People v. Watson, supra, 46 Cal.2d at p. 836.)

V.

Defendant asserts that the prosecutor should not have asked him to read from his gang registration form, as follows:

I have been notified that I have been determined to belong to a criminal street gang whose members engage in or have engaged in a pattern of criminal gang activity as described in subdivision (e) of Section 186.22 of the California Penal Code. Additionally, a judge of the Superior Court has determined that I have been convicted in a criminal court or have had a petition sustained in a juvenile court for a gang-related crime. (Italics added.)

Defendant argues this was misconduct because the portion stating a superior court judge had found him a member of a gang was intended to confuse or mislead the jury into believing defendant had already been found guilty of being a gang member. On the same transcript page, defendant admitted he was a member of the Westside Crips at least as of that date [of his registration]. At other times during his testimony, he admitted he had been a member of the Westside Crips gang for one year. If there was misconduct, it was harmless. (People v. Barnett, supra, 17 Cal.4th at p. 1133; People v. Watson, supra, 46 Cal.2d at p. 836.)

VI.

Lastly, defendant contends the prosecutor committed misconduct by asking him a misleading and compound question that resulted in an answer the prosecutor later argued was an admission to the crime. The following occurred:

Q. Now, youve testified also that Leland Terrell is some sort of distant relative of yours.

A. Yes, maam.

Q. Did you know him before you shot him?

A. Yes, maam.

Q. You did.

A. Yes, maam.

Q. How did you know him?

A. I used to see him all the time when he used to come over his aunties house, which is married to my cousin. (Italics added.)

Defendant argues [i]t was obvious from the context of [the prosecutors] questions that she was asking him how he knew [Leland], and whether he was related to him. When [defendant] answered that question in the affirmative, his answer can only be understood in the context that he knew [Leland] as his cousin. We agree that the question (Did you know him before you shot him?) was improper because it was compound, and we also agree that reasonable jurors would have understood defendants affirmative answer to mean he knew Leland before he was shot. Defendant had repeatedly and emphatically denied shooting Leland and we agree it is unlikely the jurors would take his answer to this compound question as an admission, despite the prosecutors argument to that effect. Accordingly, even if the question was meant to elicit an unintentional admission, such that it constituted the use of deceptive or reprehensible methods to attempt to persuade ... the jury (People v. Silva (2001) 25 Cal.4th 345, 373), we would not reverse because it is not reasonably probable that a result more favorable to defendant would have been reached had the prosecutor not asked the question. (People v. Barnett, supra, 17 Cal.4th at p. 1133; People v. Watson, supra, 46 Cal.2d at p. 836.)

VII.

We conclude that any misconduct, which in no case rose to the level of constitutional error, was harmless when viewed in light of the overwhelming evidence of defendants guilt. One witness testified he saw defendant pull out a gun and shoot Leland, and several other witnesses provided strong circumstantial evidence that defendant had a gun, was involved in a confrontation with Leland, and shot Leland as he left his property. Thus, a more favorable verdict was not reasonably likely absent the prosecutors alleged misconduct. (People v. Barnett, supra, 17 Cal.4th at p. 1133; People v. Watson, supra, 46 Cal.2d at p. 836.)

Moreover, because we conclude the prosecutors alleged misconduct did not prejudice defendants case, we necessarily reject defendants contention that his trial counsel was ineffective for failing to object to and request admonitions to the jury regarding the alleged misconduct. (People v. Ledesma (1987) 43 Cal.3d 171, 217 [ineffective assistance claim requires not only a showing counsels performance was deficient but also resulting prejudice].)

DISPOSITION

The judgment is affirmed.

_____________________

Kane, J.

WE CONCUR:

_____________________

Harris, Acting P.J.

_____________________

Wiseman, J.

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

^[2] Egg referred to Eastside. ESK referred to Eastside Killer. Weak referred to Westside. Dub SK referred to Westside Killer.

^[3] C. testified he was inside the house at this point.