target="D062155_files/props0002.xml">
P. v. Wright
Filed 7/10/13
P. v. Wright CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JERRY LOUIS WRIGHT,
Defendant and Appellant.
D062155
(Super. Ct. No. SCD239262)
APPEAL from
a judgment of the Superior Court of
County, Joan P. Weber, Judge.
Affirmed.
Barbara A.
Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Julie L. Garland, Assistant
Attorneys General, Lynne G. McGinnis, Lilia E. Garcia, Kristine A. Gutierrez,
Deputy Attorneys General for Plaintiff and Respondent.
A jury
convicted Jerry Louis Wright of the lesser included offense of misdemeanor
240/241, subd. (a); count 1) and battery
with serious bodily injury (§ 243, subd. (d); count 2). It found true allegations that he inflicted
great bodily injury on count 2 (§ 1192.7, subd. (c)(8)). The jury acquitted Wright of the greater
offense of felony assault in count 1 and making criminal threats in count
3. As to count 2, the jury found not
true allegations that he personally used a metal rod as a deadly weapon. In a bifurcated proceeding, Wright admitted,
among other prior convictions, he had suffered one serious felony and strike
prior conviction (§§ 667, subd. (a)(1), 1170.12) that occurred in
1988. After granting Wright's motion to
dismiss his strike prior conviction, the trial court sentenced Wright to 7
years in state prison, consisting of a two-year lower term on count 2, a
concurrent six-month term on the count 1 misdemeanor, and five years for a
serious felony prior. It ordered him to
pay restitution fines and various fees.
Wright
contends cumulative errors denied him his constitutional
rights to due process and a fair trial.
Specifically, he argues he was prejudiced by the trial court's error in
admitting his previously excluded prior 1988 robbery conviction for the purpose
of permitting the prosecution to impeach certain trial testimony and the
prosecutor's subsequent misconduct in attempting to elicit irrelevant
underlying facts concerning the robbery prior, and arguing to the jury that
Wright responded in a deceptive manner when cross-examined about that prior
conviction. We affirm the judgment.
FACTUAL AND
PROCEDURAL BACKGROUND
Prosecution Evidence
Sometime
during the evening of February 13, 2012, Alvin Walker and his girlfriend Sherry
Wright, who is appellant's sister,
name="_ftnref2" title="">[2]
returned home after going out and consuming beer and snacks. Because it had rained and they were wet and
cold, Sherry went to turn on the heater.
Wright, who had moved into Sherry's house with his girlfriend, came out
of his room and, using expletives, angrily told her he was going to show her
how to turn on the heater one last time.
Walker admonished Wright not to talk to Sherry in that manner. Wright responded by hitting Walker very hard
in the jaw. Walker fell back but then
ran at Wright and punched him in the chest area, and the men began to
tussle. Wright threatened to kill Walker
or "kick [his] ass." According
to Walker, Wright grabbed an aluminum broom handle and swung it like a baseball
bat, hitting him in the forehead. Walker fled to the bathroom, bleeding
profusely. He was later treated in the
emergency room for a bloody and broken nose, a moderately deep cut on the brow,
and swelling and tenderness on his face.
Walker received a Vicodin prescription for his broken nose.
Police
responding to Sherry's home later found the metal poles, but saw no indication
they had been used in a fight. Wright
was calm and did not have any visible injuries, and Sherry was initially elusive,
claiming first that she was alone at the house, then acknowledging Wright was
there.
Defense Evidence
Testifying
in his defense, Wright claimed Walker had been choking Sherry that night, and
that Walker grabbed him after he protectively hugged Sherry. He stated he had reported Walker to police
for prior domestic violence incidents against Sherry. Wright denied hitting or throwing any punches
at Walker, and he denied picking up any stick or pole; according to Wright,
Walker left and Wright locked the door behind him.
Rebuttal Evidence
A San Diego
Police Department detective testified he spoke with Wright shortly after the
incident and Wright never said anything about domestic violence or Walker
choking Sherry. According to the
detective, Wright told him that after Walker poked him in the chest, he knocked
Walker's hand away and the two men wrestled.
Another detective testified that Sherry reported to him that Wright and
Walker argued and started to fight, and she saw Wright swing an object at
Walker. Sherry did not tell him that
Walker had choked or abused her, but she related that Wright had knocked her to
the ground trying to go after Walker.
DISCUSSION
Wright
contends he was denied a fair trial by related and cumulative errors, namely, the
trial court's admission of a previously excluded 24-year-old prior robbery
conviction, leading the prosecutor to highlight to the jury the violent nature
of that conviction and Wright's reluctance to admit it. We consider each assertion of error separately
so as to assess their cumulative impact.
I. Admission
of 1988 Robbery Conviction
A.
Before
trial, the prosecutor sought to admit Wright's 1988 robbery conviction—in which
Wright assertedly used a firearm to steal from multiple office employees—for
impeachment and his character for violence.
The trial court ruled the conviction was too remote, but explained it
would reconsider its ruling if character evidence was offered that Wright was a
peaceful, nonviolent person. The trial
court also agreed the conviction would be admissible under Evidence Code
section 1103
title="">[3]
if Wright presented evidence of Walker's propensity for violence.
Wright
subsequently testified about Walker's actions on the evening in question,
claiming Walker had choked Sherry and grabbed him, as well as Wright's
assertion he had twice before called police on Walker based on incidents of
domestic violence between Walker and Sherry.
When defense counsel asked if he was trying to defend his sister on the
night in question, Wright responded that he thought he was "defending his
attacker"; that he and Sherry were victims "because [Walker] was
abusing her verbally, and when he put his hands on me, I thought . . . he was
going to attack me.
. . . So no, I didn't
hit him or anything. . . . I don't fight. Excuse me.
I don't."
During a
sidebar taken after that testimony, the court ruled Wright had opened the door
to impeachment with his prior robbery conviction. At the close of Wright's cross-examination,
the prosecutor referred back to Wright's testimony that he was not a violent
person, and asked him to admit that he suffered a prior robbery conviction
involving violence and a gun. Wright
admitted the 1988 robbery was a violent act, but denied it involved a gun. The court sustained defense counsel's belated
objection as to the scope of the questioning.
B.
Conviction was Not a Manifest Abuse of Discretion
1, section 28, subdivision (f)(4) of the California Constitution provides in
relevant part: "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."
"A witness may
any prior conduct
involving moral turpitude
whether or not
it resulted in
a felony conviction,
subject to the
trial court's exercise
of discretion under
Evidence Code section 352." (People v. Clark (2011) 52 Cal.4th
856, 931.)
title="">[4]
whether to admit
a prior conviction
for impeachment purposes,
the court should
consider, among other
factors, whether it
reflects on the
witness's honesty or
veracity, whether it
is near or
as the charged
offense, and what
effect its admission
would have on
the defendant's decision
to testify." (People v. Clark, at p. 931.) Because the trial court's discretion to admit
or exclude impeachment evidence is broad, a reviewing court ordinarily upholds
the trial court's exercise of discretion.
(Id. at p. 932; People v. Hinton (2006)
37 Cal.4th 839, 887.) Robbery is a crime
of moral turpitude (People v. Collins (1986) 42 Cal.3d 378, 395;
641) and a crime of theft that reflects on a witness's honesty. (People v. Castro (1985) 38 Cal.3d 301, 315, fn. 10.)
As stated,
the trial court was required to exercise its discretion in deciding whether the
1988 conviction was too remote or prejudicial in view of Wright's relatively
minor subsequent criminal history.
name="_ftnref5" title="">[5] Concededly the court's discussion on that
matter was limited to its commentary before trial. Nevertheless, the court did consider the
nature of Wright's offense and its remoteness, and held it more probative than
prejudicial in the event Wright presented evidence of his nonviolent
character. "Although the record
must 'affirmatively show that the trial court weighed prejudice against probative
value' [citations], the necessary showing can be inferred from the record
despite the absence of an express statement by the trial court." (People
v. Prince (2007) 40 Cal.4th 1179, 1237.)
The court's statements reflect it understood and exercised its
obligation to balance probative value against prejudice and the other relevant
factors. And, after Wright testified he
was not the sort of person who fights, exclusion of his robbery prior
conviction would have given him a " ' " 'false aura of veracity.'
" ' " (People v. Clark, supra,
52 Cal.4th at p. 932.) Admission of the
evidence did not consume an undue amount of time; the questioning spans less
than a page of transcript. We cannot say
the trial court's decision to admit the evidence for impeachment was a plain
and manifest abuse of discretion, exceeding all bounds of reason. (People v. Watson (2008) 43 Cal.4th
652, 684; In re Ryan N. (2001) 92 Cal.App.4th 1359, 1385 ["It is
well established that a trial court is vested with wide discretion in
determining relevance and weighing the prejudicial effect of evidence against
its probative value," and "[e]videntiary rulings will not be
overturned on appeal in the absence of a clear abuse of that discretion, upon a
showing that the trial court's decision was palpably arbitrary, capricious, or
patently absurd, and resulted in injury sufficiently grave as to amount to a
miscarriage of justice"]; People v.
Stewart (1985) 171 Cal.App.3d 59, 65.)
Even
assuming the trial court abused its broad discretion in admitting Wright's 1988
conviction, which opened the door to the prosecution asking whether it involved
violence and a gun, we cannot say admission of the prior conviction resulted in
potentially game-changing prejudice. The
evidence of Wright's guilt of misdemeanor assault and battery was amply supported
by both Walker's and Sherry's testimony, and corroborated by the testimony of
physicians as to Walker's injuries that night.
Moreover, it is evident Walker's credibility was not completely
destroyed, inasmuch as the jury necessarily believed his testimony that he did
not attack Wright with the aluminum pole.
For this reason, there is no merit in Walker's claim that he was
prejudiced by admission of the evidence.
II. Claim
of Prosecutorial Misconduct
Conceding
his counsel did not object on misconduct grounds, Wright contends the
prosecutor "step[ped] over the line" in his cross-examination about
the facts underlying his 1988 prior conviction, as well as in suggesting Wright
"was 'deceptive' about his record, while the victim was forthright." During closing argument, the prosecutor again
referred to Wright's prior convictions and inconsistent statements, stating:
"[Prosecutor:] How reasonable is [Wright's] testimony? When you consider that testimony against all
other testimony, how reasonable is it? And not just other testimony, but other
evidence. [¶] And whether or not the person has a felony
conviction. [¶] Alvin Walker's got four of them. It's true.
But as I started out the trial and as I started out this closing, anyone
can be a victim. And we don't get to
pick the victims.
"Now
he told you about those felonies. He
told you. [¶] The defendant, however, was deceptive even in
that, even in that. It had to get teased
out of him when he says that he's not a violent person, and then he gets asked
on cross-examination about his felony background, about that robbery
conviction.
"Now,
yes, it was in 1988. That's a long time
ago. But just fess up to it."
Wright
characterizes this as the "quintessence" of prosecutorial misconduct;
that the prosecutor attempted to persuade the jury by reprehensible means
knowing that Wright did not admit to his prior conviction because it was not
yet in evidence. He maintains the
prosecutor's errors swayed the jury to believe Walker and not him, and that the
jury may have wholly instead of partially acquitted him but for the
prosecutor's improper examination and argument.
"The
applicable federal and state standards regarding prosecutorial misconduct are
well established. ' "A prosecutor's
. . . intemperate behavior violates the federal Constitution when it comprises
a pattern of conduct 'so egregious that it infects the trial with such
unfairness as to make the conviction a denial of due process.' " ' [Citations.]
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
persuade either the court or the jury.' " ' " (People
v. Samayoa (1997) 15 Cal.4th 795, 841; see also People v. Stanley (2006) 39 Cal.4th 913, 951.)
Setting
aside counsel's forfeiture of the appellate contention for failing to timely
object on misconduct grounds (People v.
Parson (2008) 44 Cal.4th 332, 359), we perceive no misconduct under these
standards. It is not misconduct to
comment on evidence properly admitted by the trial court, and after the court's
ruling, defense counsel did not request that it caution the prosecutor to
"sanitize" the evidence by precluding mention of the nature of the
particular offense. (See, e.g.,
170, 173 [holding when defendant stipulates to felony conviction, evidence of
the nature of the prior conviction should be withheld from the jury];
819, 825.) Thus, the prosecutor's
comments as to the nature of Wright's robbery were not in derogation of any
order sanitizing the prior. A prosecutor
is free to give an opinion on the state of the evidence and has wide latitude
to comment on its quality and the credibility
of witnesses as long as it is a fair comment on the evidence and reasonable
inferences or deductions therefrom. (People
v. Bonilla (2007) 41 Cal.4th 313,
336-337.)
Further,
reversal for prosecutorial misconduct
is called for only when, after reviewing the totality of the evidence, we can
determine it is reasonably probable that a result more favorable to the
defendant would have occurred absent the misconduct.
Tully (2012) 54 Cal.4th 952, 1011;
People v. Watson (1956) 46 Cal.2d 818, 836.) We cannot say counsel's brief comment swayed
the jury in view of Walker's testimony, and it plainly found Walker the more
credible witness despite his criminal history.
Nor can we say the prosecutor's isolated comment during closing argument
rendered the trial fundamentally unfair.
Thus, the Chapman v. California (1967) 386 U.S. 18 standard of
harmless error does not apply.
Accordingly, we reject Wright's
contention that the cumulative effect of the purported errors undermined
the fundamental fairness of the trial and require reversal. As we have " 'either rejected on the
merits defendant's claims of error or have found any assumed errors to be
nonprejudicial,' " we reach the same conclusion with respect to the
cumulative effect of any purported errors.
(People v. Cole (2004) 33 Cal.4th 1158, 1235-1236; People v.
Butler (2009) 46 Cal.4th 847, 885.)
DISPOSITION
The
judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
McDONALD, Acting P. J.
McINTYRE, J.
name="_ftn1" title="">[1] Statutory references are to the Penal Code unless otherwise
indicated.
name="_ftn2" title="">[2] We refer to Sherry Wright by her first name for clarity,
not out of disrespect.
