P. v. Pule

Filed 4/12/07 P. v. Pule CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

Appeal from a judgment of conviction of the Superior Court of Los Angeles County, John A. Torribio, Judge. Affirmed.

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

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Timothy M. Weiner, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

Defendant and appellant Lokeni Alisa Pule (defendant) was charged with carjacking and second degree robbery. The two victims separately identified him from a photographic line-up and at trial. When arrested, defendant was in possession of a handgun similar to the one used in the carjacking and robbery. The jury found defendant guilty.

On appeal, defendant contends that the prosecutor engaged in prejudicial misconduct by expressing his belief in defendants guilt. We hold that defendants claim of prosecutorial misconduct is not reviewable on appeal because he failed to object on that ground or request an admonition in the trial court; that even if we were to review the claim, the challenged remark was not misconduct; and that defendant was not prejudiced by the remark. We therefore affirm the judgment.

PROCEDURAL BACKGROUND

The Los Angeles County District Attorneys office charged defendant in an information with two counts of carjacking in violation of Penal Code section 215, subdivision (a),^[1] each a felony, and two counts of second degree robbery in violation of section 211, each a felony. The information further alleged as to each of the four counts that defendant personally used a firearm, a handgun, within the meaning of Penal Code section 12022.53, subdivision (b).

Defendant pleaded not guilty and denied all special allegations. After a jury trial, defendant was found guilty on all counts. The jury also found the special allegations to be true.

The trial court sentenced defendant to: the midterm of five years on Count 1; a concurrent midterm of five years on Count 2; an additional 10 year term on Count 1 for use of a firearm under section 12022.53, subdivision (b), for a total of 15 years on that Count; and an additional, concurrent 10 year term on Count 2 for use of a firearm under section 12022.53, subdivision (b), for a total of 15 years on that Count. The trial court stayed the sentence on Counts 3 and 4 for second degree robbery, and awarded defendant 640 days of presentence custody credit, consisting of 557 days of actual custody credit and 83 days of conduct credit.

FACTUAL BACKGROUND

At approximately 1:30 a.m. on August 14, 2004, Derek Creighton (Creighton) and Julian Davis (Davis) were parked in Daviss Monte Carlo in front of Creightons residence on Virginia Avenue in Bellflower. Creightons residence was located a couple hundred yards from the 9080 Club. The area was well-lighted from a streetlight right across from where they were parked. Defendant approached their vehicle on the drivers side, and asked them if they knew where he could get some weed. When they replied in the negative, defendant walked towards the rear of vehicle. Davis, who was in the drivers seat, heard what sounded like a gun cock, and when he turned to see what was actually going on, defendant put a silver semiautomatic handgun to his neck. Davis told defendant, We dont gang bang, to which defendant replied, We dont gang bang either. This is not a gang bang move. [] Its a jack move. Defendant asked Davis if he had any money, and proceeded to check Daviss pockets.

Davis then asked if defendant wanted the vehicle, and defendant replied in the affirmative. Defendant opened the drivers side door, Davis exited the vehicle, and defendant pointed the gun at Daviss chest. There was another man to the side of defendant, but Davis was not looking at him; he was focused on defendant. Defendant, who was two feet away from Davis, was taller than Davis.[2] The other man on Daviss side of the vehicle was smaller than defendant.

Defendant observed Daviss chain and snatched it from his neck. The other man then punched Davis in the right cheek with his fist. Davis started falling to the ground when he was hit on the left side of his face with something that felt like metal. Defendant had a gun, but the other man standing next to him did not. Defendant was knocked unconscious.

About 20 seconds after defendant put the gun to Daviss neck, another man approached Creightons side of the vehicle and pointed a .38 caliber revolver at him. The man told Creighton to empty his pockets, which he did. The man took Creightons cell phone and $20. Then he began hitting Creighton in the head and face with his fist.

After Davis exited the vehicle, defendant entered it on the drivers side. He and Creighton were sitting shoulder to shoulder. Creighton got a good look at him. Once defendant entered the vehicle, Creighton tried to force his way out of the vehicle on the passenger side, but the man who had been holding a gun on him would not let him out. Creighton managed to force his way out of the vehicle, as the man with the gun on the passenger side kicked and hit him. That man then entered the vehicle and drove away with defendant.

Los Angeles County Deputy Sheriff Donald Roachford responded to the scene of the carjacking at around 1:30 a.m. on August 14, 2004. At the scene, Deputy Roachford observed that Davis had sustained injuries to both of his cheeks, his right eye and his lip. Davis told Deputy Roachford that his Monte Carlo―registered to his mother Rosalind Robinson―had been stolen.[3]

At approximately 11:00 p.m. on August 14, 2004, Long Beach Police Officer Toby Benskin found a Monte Carlo in the area of 47th Street and Rio Avenue. It was registered to Rosalind Robinson. The vehicle was located approximately three to four residential blocks from defendants residence.[4]

Los Angeles County Sheriffs Detective Scott Hoglund showed Davis and Creighton a six-pack or mug folder and they were each able to identify defendant as the man with the gun who had carjacked them. Neither victim hesitated in identifying defendants photograph.[5]

On September 14, 2004, Detective Hoglund interviewed defendant. He advised defendant of his Miranda rights, which defendant waived. Defendant initially denied having any knowledge of or involvement in the incident, and denied being in the area. But when Detective Hoglund informed defendant that he had been identified, defendant changed his story. Defendant claimed he was a pool hustler who had been playing pool at the 9080 Club located less than 100 yards from the location of the carjacking. He said he left the club about 1:30 a.m. and, as he was walking southbound on Virginia Avenue, he saw a group of Samoans and a male black, a large male black, staggering on the ground trying to get up [who] apparently had been beaten.[6] Defendant said he came within 15 feet of the victim but never was involved with the victim, never hit him, never did anything [criminal].

On September 14, 2004, at approximately 5:00 a.m., Los Angeles County Deputy Sheriff Zack Conner entered defendants residence. Initially, defendant refused to comply with Deputy Conners commands to put his hands up. At one point, Deputy Conner heard a distinct clunk at [defendants] feet, and observed him trying to shuffle something under the couch with his feet. Deputy Conner detained defendant, and recovered a silver automatic handgun from under the couch.

Defendant did not testify at trial, but did call two alibi witnesses, Leah Garcia (Garcia) and his former girlfriend, April Tan (Tan). Garcia testified that she lived near the 9080 Club. On or about August 14, 2004, at approximately 1:40 a.m., she was outside the club trying to get a light for her cigarette. Defendants girlfriend gave Garcia a light, and spoke to her and defendant for about five minutes. She then observed them walk to their car and drive away. Garcia did not notice any disturbance in the vicinity of the club that night.

Tan had been defendants girlfriend from 2002 through 2004. She went to the 9080 Club once with defendant in August 2004. She was outside the club smoking a cigarette at about 1:30 a.m. when she noticed defendant talking to Garcia. Tan went over to where they were talking. Garcia was looking for a lighter, so Tan lit her cigarette and . . . [they] made a little bit of chit-chat. At about 1:45 a.m., Tan and defendant returned to their car and drove away. As they were leaving, Tan saw a big tall bald guy down the street on Virginia, at the end of the street. He looked drunk, and a tall, skinny man was trying to help him to his feet.

DISCUSSION

A. Standard of Review

Defendants claim of prosecutorial misconduct is governed by an abuse of discretion standard of review. (People v. Alvarez (1996) 14 Cal.4th 155, 213 [As a general matter, an appellate court reviews a trial courts ruling on prosecutorial misconduct for abuse of discretion].) To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complainedof comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we do not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutors statements. [Citation.] (People v. Frye (1998) 18 Cal.4th 894, 970.)

B. Defendants Claim of Prosecutorial Misconduct

1. The Challenged Remark in Context

Defendant contends that the prosecutor engaged in prejudicial misconduct by expressing his personal belief in defendants guilt. He focuses on an isolated portion of rebuttal argument during which the prosecutor stated, [H]ere is what I believe, which is, [defendant] is guilty of these crimes as supported beyond a reasonable doubt by the evidence. According to defendant, that remark is tantamount to an expression of personal belief in the guilt of defendant that violated his right to a fair trial by an impartial jury.

Defendant relies on the general rule that a prosecutor cannot assert his or her personal opinion as to the guilt of the accused. (See United States v. Young (1985) 470 U.S. 1, 7-8 105 S.Ct. 1038, 84 L.Ed.2d 201].) Here, the prosecutors remark, when viewed in isolation, appears to run afoul of that rule. Indeed, the prosecutor himself acknowledged as much when he apologized for the remark. But, as discussed below, it does not necessarily follow that such a violation constitutes prejudicial misconduct warranting reversal.

To analyze this issue properly, the challenged remark must be reviewed in relation to the entire argument in which it was made. (See People v. Lucas (1995) 12 Cal.4th 415, 475.) The prosecutor made the challenged remark in the following context: [Prosecutor]: We could go on and on and on, but Im going to wrap this up before lunch. What I want you to understand though is that there is no attempt to do anything other than put the case before you because you are the finders of fact. This is a matter of here is what we have, here are the inferences in my closing I believe can be made from the evidence, and here is what I believe, which is that [defendant] is guilty of these crimes as supported beyond a reasonable doubt by the evidence. [Defense counsel]: Objection to the prosecutor stating his personal belief. The Court: Sustained as to the form of argument only. [Prosecutor]: Sorry about that. [] Let me go back then. What you can infer from the evidence before you is the guilt of [defendant], irrespective of what I believe, irrespective of what [defense counsel] believes, what do you believe? What do all 12 of you people believe having heard the evidence and seen the people involved in this case? Do you believe this is a matter of a conspiracy to frame [defendant], or do you believe these people are trying the best they can to identify somebody who carjacked them and robbed them at gunpoint? It is within this broader context that we analyze defendants claim of prejudicial prosecutorial misconduct.

2. Defendants Claim of Prosecutorial Misconduct Is Not Reviewable

Defendants claim of prosecutorial misconduct based on the challenged remark to the jury is not reviewable on appeal. 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.] . . . Because an admonition would have cured any harm, the failure to request an admonition renders the claim of misconduct unreviewable. (People v. Silva (2001) 25 Cal.4th 345, 373; People v. Stewart (2004) 33 Cal.4th 425, 498 [because the [challenged] statement was not objected to below, and because a timely admonition would have cured any harm, this claim [of prosecutorial misconduct] may not be asserted on appeal]; People v. Frye, supra, 18 Cal.4th at p. 970.)

Defense counsel in this case did not specifically object on the grounds of prosecutorial misconduct; he merely objected to the prosecutor stating his personal belief. And even if that objection could be construed as a specific assignment of misconduct, defense counsel failed to couple his objection with a request for an admonition. Contrary to defendants assertion, an admonition by the trial court directing the jury to disregard the prosecutors remark would have cured any potential harm that the remark could have caused, and ensured that the jury would not have misunderstood or misapplied the remark. Having failed to make a timely request for a curative admonition in the trial court, defendant cannot now seek review of the issue on appeal.

3. The Challenged Remark to the Jury Did Not Rise to the Level

of Misconduct

Even if we were to review the issue, we would nevertheless conclude that the challenged remark did not constitute misconduct. The prosecutors comments in this case are similar to those at issue in People v. Stewart, supra, 33 Cal.4th 425. There the court concluded: In context, it is clear that the prosecutors message was that the jury should examine the evidence and conclude for itself whether defendant was or was not guilty―and the prosecutor urged that the evidence was reasonably susceptible of only a determination of guilt. We discern no misconduct. (Id. at p. 499.)

As in People v. Stewart, supra, 33 Cal.4th 425, it is clear that the challenged remark in this case―when read in context―was linked to the factual inferences the prosecutor believed the jury could draw from the evidence. In addition to prefacing the challenged remark by stating, here are the inferences in my closing I believe can be made from the evidence, the prosecutor removed any doubt his remark may have raised by clarifying that [w]hat you can infer from the evidence before you is the guilt of [defendant], irrespective of what I believe, . . . what do you believe? Notwithstanding the apology, taken in this context, the challenged remark cannot fairly be read as suggesting that the prosecutor was basing his belief on evidence that was not before the jury, or that he believed in the defendants guilt prior to trial. (See People v. Bain (1971) 5 Cal.3d 839, 848 [prosecutor may not express a personal opinion or belief in a defendants guilt, where there is substantial danger that jurors will interpret this as being based on information at the prosecutors command, other than evidence adduced at trial].) In light of the prosecutors repeated references to the evidence adduced at trial and to the jurys role as the ultimate finder of fact, there was no misconduct.

4. Defendant Was Not Prejudiced by the Challenged Remark

Even assuming the challenged remark rose to the level of misconduct, there would have been no prejudice to defendants right to a fair trial by an impartial jury. (See People v. Stewart, supra, 33 Cal.4th at p. 499.) First, as noted above, the prosecutor responded to defendants objection by advising the jurors to disregard his belief and to focus on their own beliefs about the inferences to be drawn from the evidence. In doing so, he cured any potential for misunderstanding that the challenged remark may have posed.

Second, the trial court instructed the jury that the arguments of counsel were not evidence, and that the jury was required to decide the case based on the evidence adduced at trial. Those instructions were consistent with the prosecutors statements about the evidence and the role of the jury, and they served to eliminate any possible misunderstanding that could have arisen from the remark. (People v. Stewart, supra, 33 Cal.4th at p. 499 [In light of the evidence and the instructions under which the jury was directed to deliberate, the prosecutors brief remark, accompanied as it was by proper comments concerning the evidence and the jurys role as fact finder, resulted in no miscarriage of justice within the meaning of the Constitution. [Citation.]].)

Third, the evidence against defendant was strong and persuasive, such that there was no likelihood the jury was misled or unduly influenced by the remark. Davis and Creighton were eyewitnesses, each of whom had a proximate and unobstructed view of defendant during the course of the incident. They each identified defendant from a photographic line-up and at trial. Defendants distinctive height and weight made it extremely unlikely that they could have mistaken him for some other six foot, six inch, 370 pound perpetrator of Samoan descent. Moreover, at the time of his arrest, defendant was in possession of a handgun similar to the one Davis and Creighton described as having been used by defendant during the carjacking and robbery. Given the overwhelming evidence of defendants guilt, he was not prejudiced by the challenged remark. (People v. Roybal (1998) 19 Cal.4th 481, 520-521.)

DISPOSITION

The judgment of the trial court is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

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[1] All further statutory references are to the Penal Code unless otherwise stated.

[2] The parties stipulated that defendant was 6 foot 6 inches tall and approximately 350 to 370 pounds.

[3] Based on information he received at the scene, Deputy Roachford put out a radio crime broadcast describing the suspects as three male Samoans.

[4] Davis testified that his social security card, I.D., radio, speakers, and cell phone were missing from his vehicle after it was recovered.

[5] Creighton and Davis also identified defendant at trial.

[6] Detective Hoglund testified that defendant was Samoan, as did Deputy Conner.