P. v. Lathan

Filed 7/19/07 P. v. Lathan CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Ronald S. Coen, Judge. Affirmed with directions to correct the abstract of judgment.

Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves and Pamela C. Hamanaka, Senior Assistant Attorneys General, Mary Sanchez and Robert F. Katz, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Richard Lathan appeals from a judgment after a jury trial in which he was convicted of three counts of obstructing or resisting executive officers in the performance of their duties. He contends the prosecutor committed misconduct in argument to the jury, and that the trial court erred in failing to reduce his wobbler convictions to misdemeanors. Finding no cognizable error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On March 1, 2005, defendant was an inmate at the North County Correctional Facility. He was housed in a dormitory with upwards of 60 other inmates. Los Angeles County Sheriffs Deputies decided to conduct a routine unannounced search of the dormitory that night, two hours after lights out. To properly search the dormitory, the deputies planned to wake the inmates, secure them, escort them all to a holding area, and search the empty dormitory.

The deputies turned on the lights and Deputy Eder Arevalo loudly, clearly, and repeatedly announced the search. He ordered the inmates to stay on their bunks and put their hands behind their heads. Nearly all of the inmates complied. Defendant did not, and Deputy Arevalo repeated his orders in defendants direction. Defendant was acting nervous and fidgety. Rather than place his hands behind his head, defendants right hand was moving toward his waistband.

Deputy James Cho made eye contact with defendant and repeated the order to him. Defendant replied with an expletive expressing his refusal to comply, and asked, Why are you messing with me? Deputy Cho again ordered defendant to stop moving and put his hands behind his back. Deputy Cho approached defendant intending to grab his right arm and handcuff him. Defendant made a fist and swung at Deputy Chos face. Deputy Cho ducked the punch and defendant missed. Deputy Cho tried to punch back and also missed.

A struggle ensued and additional deputies approached to assist Deputy Cho in handcuffing defendant. Defendant repeatedly kicked, struggled, spit, and shouted profanities and threats. Defendant continued this behavior despite orders to stop. At one point, at the direction of his supervisor, Deputy Arevalo attempted to taser defendant. However, to be effective, both taser darts must make contact with the target, and one of the darts aimed at defendant rebounded and hit another deputy.

Defendant continued struggling, even though four deputies were engaged in the attempt to handcuff him. Eventually, one deputy delivered two knee strikes to defendants upper thigh, which caused defendant to stop kicking long enough for the deputies to handcuff defendant. The deputies then attempted to escort defendant out of the dormitory. As they walked, defendant continued to struggle and shout profanities. He lunged his body forward so that all four deputies fell forward with him. On the ground, defendant recommenced kicking.

At this point, the sergeant in charge ordered that defendant be restrained with a nylon strap tied around his legs and attached to his handcuffs, which would prevent him from fully extending his legs. The deputies, however, were unable to grasp defendants legs. One deputy struck defendant in the lower leg with his flashlight five or six times, which ultimately stopped defendant kicking long enough for the deputies to apply the restraint. At all times, the deputies acted within policy for the use of force.

This was not the first time defendant had refused to comply with an order to submit to handcuffs. In 1995, while incarcerated at Pelican Bay, defendant refused a correctional officers order to submit to handcuffs via the cuff port in the cell he shared with another inmate. He also refused the order when given by the correctional officers sergeant, but ultimately complied when a lieutenant repeated the order. Again in 1995, at Pelican Bay, defendant and his cellmate refused to back up to the cuff port and be handcuffed. While defendants cellmate complied after the correctional officers used pepper spray, defendant continued to refuse. An extraction team of five officers entered the cell. Defendant resisted violently, striking out with his feet and hands, but was ultimately overcome. In 1998, while incarcerated at the California Correctional Institution in Tehachapi, defendant, on the pretense that he needed to be escorted from his cell to use nail clippers, purported to submit to handcuffs through the port in his cell. However, as soon as one hand was cuffed, defendant stepped back into his cell, holding the handcuffs hostage and demanding privileges he felt that he and his cellmate had been wrongly denied. Despite repeated orders to return the handcuffs, defendant did not do so until he was given the privilege he sought.

On October 4, 2005, defendant was charged by information with three counts of obstructing or resisting executive officers in the performance of their duties, a wobbler (Pen. Code,  69); one count of criminal threats (Pen. Code, 422); and three counts of assault by means likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1).) It was further alleged that defendant had suffered four prior serious felony convictions within the meaning of Penal Code section 1170.12. Defendant entered a plea of not guilty.

Defendants motion to proceed in propria persona was granted. The prosecutor moved to admit evidence of thirteen prior similar acts under Evidence Code section 1101, subdivision (b). Over defendants objection, the trial court allowed evidence of seven of the acts, admissible for the issues of intent and common plan or scheme.

The case proceeded to trial. The prosecution relied on the testimony of five deputies, and the sergeant, who were involved in restraining defendant when he refused to comply with the search. After the completion of the testimony of the prosecutions percipient witnesses, the prosecution moved to dismiss the three assault charges. The trial court dismissed the charges in the furtherance of justice. The prosecution also introduced evidence of three of defendants prior refusals to submit to orders, via the testimony of three additional correctional officers. The prosecution did not submit evidence of the four additional admissible prior acts, due to witness unavailability.

Defendant introduced no evidence on his behalf, with respect to either the current charged offenses or the prior bad acts. As to the prior bad acts, his cross examination of the witnesses did not question the testimony that he had, in fact, refused to comply with orders, but only pointed out the age of that behavior. In argument to the jury, defendant suggested the deputies had beat him up for no reason, and had fabricated the charges of resisting in order to cover up their own misconduct.

The jury found defendant guilty of three counts of obstructing or resisting officers, but was hopelessly deadlocked on the count of criminal threats.^[1] The trial court declared a mistrial on the count of criminal threats, and ultimately dismissed it at sentencing. In bifurcated proceedings, the four prior serious felony conviction allegations were found to be true.

Defendants repeated motions to strike one or more of his prior serious felony convictions were denied, as was his motion for new trial. The trial court also declined to exercise its discretion under Penal Code section 17, subdivision (b) to designate the offenses as misdemeanors. Defendant was sentenced to a term of 25 years to life in prison on one count of resisting an officer,^[2] with similar sentences on the other two counts stayed under Penal Code section 654. Defendant filed a timely notice of appeal.

CONTENTIONS ON APPEAL

On appeal, defendant contends: (1) the prosecutor committed misconduct in argument to the jury; and (2) the trial court erred in failing to reduce his offenses to misdemeanors. As to the alleged misconduct, defendant failed to object to the misconduct or seek an admonition; the contention is therefore deemed forfeited. As to the failure to reduce the offenses to misdemeanors, the trial court did not abuse its discretion. To the extent defendant contends the trial court erred in failing to state on the record the reasons supporting its exercise of discretion, the contention is deemed forfeited by defendants failure to object.

DISCUSSION

1. Defendant Forfeited Any Claims of Prosecutorial Misconduct

Defendant assigns as misconduct three types of statements made by the prosecutor in argument to the jury. First, defendant contends the prosecutor committed Griffin error^[3] by indicating that the evidence of his prior bad acts was undisputed, thereby improperly commenting on defendants refusal to testify. Second, defendant contends the prosecutor erred in arguing the prior acts were evidence that he had a problem with authority, which is a character trait and therefore renders the argument an improper use of the prior bad acts under Evidence Code section 1101, subdivision (a). Finally, defendant contends the prosecutor improperly vouched for his witnesses, arguing that he, personally, would not have brought this prosecution if he had believed in defendants innocence. Defendant did not interpose an objection to any of the allegedly improper statements, nor did he request the jury be admonished.

As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashionand on the same groundthe defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim 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.)

A defendants failure to request an admonition is excused if the defendant objected and the objection was overruled. (People v. Pitts (1990) 223 Cal.App.3d 606, 692.) Similarly, a defendants failure to request an admonition is excused when an admonition would not have cured the misconduct. (People v. Herring (1993) 20 Cal.App.4th 1066, 1074.) To determine whether an admonition would have been effective, we consider the prosecutors statements in context. (Ibid.) Only in extreme situations would a trial court be deemed unable to correct the impropriety of an act of counsel and unable to remove the effect of any offending comments by instructing the jury to disregard the comments. (See People v. Fitzgerald (1972) 29 Cal.App.3d 296, 312.)

Conceding that he failed to object or request an admonition, defendant contends that his failure is not a bar to raising the misconduct on appeal for two reasons. First, defendant argues that, as he was acting in propria persona, the trial court had an obligation to intervene to protect him from prosecutorial impropriety. This is not the law. A  defendant who chooses to represent himself assumes the responsibilities inherent in the role which he has undertaken, and is not entitled to special privileges not given an attorney . . . .  (People v. Barnum (2003) 29 Cal.4th 1210, 1221.) Second, defendant argues that his failure to request an admonition is excused because an admonition would not have cured the misconduct. We therefore consider the prosecutors challenged statements in context.

First, we consider the purported Griffin error. [T]he Griffin rule forbids any reference to a defendants failure to take the stand in his defense, but that rule does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses. [Citation.]  (People v.Ratliff (1986) 41 Cal.3d 675, 691.) It is true, as defendant asserts, that a prosecutor errs by referring to evidence as uncontradicted when the defendant, who elects not to testify, is the only person who could have refuted it. [Citation.] If, however, the evidence could have been contradicted by witnesses other than the defendant, the prosecutor may without violating defendants privilege against self-incrimination describe the evidence as unrefuted or uncontradicted.  (People v. Johnson (1992) 3 Cal.4th 1183, 1229.) The dispositive issue, therefore, is not whether the prosecutor referred to prosecution testimony as uncontradicted, but whether the evidence showed the possibility of witnesses other than defendant who could have contradicted the prosecutions case. Here, there was no Griffin error. The prosecutor argued that the evidence of the three prior acts was undisputed. Yet in each prior instance, there were additional witnesses other than defendant who could have testified on defendants behalf. In each instance, more than one correctional officer was involved, but only a single officer testified. In addition, a cellmate was present at each offense, but was not called to testify. As such, there was no Griffin error.^[4] To the extent the jury might conceivably have interpreted the prosecutors comments as relating to defendants failure to testify, any misconception could easily have been cured by an admonition.

Next, we consider the prosecutors argument that defendant had a problem with authority. Under Evidence Code section 1101, subdivision (a), evidence of a persons character or a trait of his or her character (whether in the form of . . . evidence of . . . specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. However, Evidence Code section 1101, subdivision (b) allows the admission of prior bad act evidence to prove a fact, such as the defendants intent, other than his or her deposition to commit such an act. In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant  probably harbor[ed] the same intent in each instance.   (People v. Ewoldt (1994) 7 Cal.4th 380, 402.)  [T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self‑defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .    (Ibid.) The prosecutors argument properly explained to the jury that the prior bad acts could be considered only for the issues of intent or common plan or scheme. Moreover, the prosecutor clearly explained that those acts were not admitted to dirty [defendant] up. However, in later arguing to the jury the effect of the prior bad acts, the prosecutor argued that the acts showed who [defendant] is and that they demonstrate his view of authority as to how he deals with situations like this. The prosecutor added, He doesnt deal well with authority. To the extent the jury might have interpreted these comments to indicate the prior bad acts were evidence of defendants character trait of not dealing well with authority, rather than simply evidence that defendant had previously knowingly resisted correctional officers, an admonition could have corrected any confusion.

Finally, we consider the prosecutions purported vouching for the truth of his case. It is misconduct for a prosecutor to express a personal belief in the defendants guilt, or to vouch for the credibility of prosecution witnesses by referring to facts outside the record. (People v. Stewart (2004) 33 Cal.4th 425, 498-499.) When the defendant argued to the jury, the defendant argued that the prosecutor had collaborated with the deputies in presenting false testimony against him. The prosecutor responded that the evidence supported the charges. The prosecutor then added, Moreover, the last thing Im going to do, the last thing Im going to do, is attempt to prosecute this person, this human being, for something he didnt do, if I had a feeling he didnt do it. He tried to indicate that [I know] this is all bull crap. What [I am] doing is covering [my] ass with all the cops. [] These cops I never met before until this case developed, and I will probably never see them again. No. [] If any of you lets make this straight up, if any of you feel that what happened here was some whitewash scam to throw away a guy who did nothing to get his butt kicked, walk him. Thats not the point in this. It is clear that the prosecutors comments were simply a reply to defendants personal attack, and were meant to relate only to the evidence introduced at trial. To the extent the jury might have construed this comment as suggesting the prosecutor had a personal belief in the defendants guilt based on evidence not presented in court, a simple admonition would have corrected any misconception.

Any possible misconduct could have been cured by timely admonition. As such, defendants failure to object and seek such admonitions is fatal to his claim on appeal.

2. The Trial Court Did Not Abuse Its Discretion To Reduce
The Offenses to Misdemeanors

Defendant next contends the trial court abused its discretion under Penal Code section 17, subdivision (b) to reduce his offenses to misdemeanors. As part of this contention, defendant argues that the trial court also erred in failing to set forth the basis of its refusal to reduce his offenses.

At the sentencing hearing, defendant reasserted his previously denied motion to strike one or more of his prior serious felony convictions. The court allowed argument. In the course of his argument on that motion, defendant stated one of the factors supporting his motion was [t]he fact that this is an in-custody case and it should be classified as a misdemeanor. The trial court denied the motion to strike. Subsequently, defendant again argued, I feel that this particular case in general should have been classified as a misdemeanor. The trial court responded, I do find, examining this, and I do have discretion to make these a misdemeanor, these three counts, I find insufficient evidence or insufficient cause for me to do that. The motion to make the matter a misdemeanor is denied.

A trial court has discretion to reduce a wobbler to a misdemeanor under the three strikes law. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978.) The discretion to reduce is subject to a broad generic standard. (Id. at p. 977.)  This discretion . . . is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice. [Citations.] [Citation.] Obviously the term is a broad and elastic one [citation] which we have equated with the sound judgment of the court, to be exercised according to the rules of law. [Citation.] [Citation.] Thus, [t]he courts have never ascribed to judicial discretion a potential without restraint. [Citation.] Discretion is compatible only with decisions controlled by sound principles of law, . . . free from partiality, not swayed by sympathy or warped by prejudice . . . . [Citation.] [Citation.] [A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.  (Ibid.)

In exercising its discretion, the trial court should consider the nature and circumstances of the offense, the defendants appreciation of and attitude toward the offense, the defendants character and the general objectives of sentencing, including public safety. (People v. Superior Court (Alvarez), supra, 14 Cal.4th at pp. 978‑979.) [T]he record should reflect a thoughtful and conscientious assessment of all relevant factors including the defendants criminal history. (Id. at p. 979.) The record must reflect a reasoned consideration of the defendants background and circumstances. (Id. at p. 980.)

On appeal,  [t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. [Citation.] Concomitantly, [a] decision will not be reversed merely because reasonable people might disagree. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. [Citations.] (People v. Superior Court (Alvarez), supra, 14 Cal.4th at pp. 977‑978.)

Defendant first contends that the trial court failed in its burden to make on the record its thoughtful and conscientious assessment of all relevant factors. This contention is not cognizable on appeal, as defendant did not challenge it at trial. [C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal. (People v. Scott (1994) 9 Cal.4th 331, 356.)

Defendant next argues the court abused its discretion in denying the motion. Defendant has failed in his burden to show the sentencing decision was irrational or arbitrary. In February 1985, defendant was convicted of voluntary manslaughter and assault with a firearm. In 1993, defendant was convicted of assault with a firearm and shooting at an inhabited building. In both cases, defendant was found to have personally used a firearm. While defendant argues these prior convictions are stale, we note that his 1993 arrest occurred less than one year after he was paroled from prison for the 1985 convictions, and the current offense occurred less than one year after we has paroled from prison for the 1993 convictions.^[5] In short, defendants criminal history provides no basis for reducing the current offenses to misdemeanors. At sentencing, defendant attempted to minimize the severity of his offenses on the theory that this was an in-custody case. Defendant failed to recognize that the circumstances of his offense specifically, violently resisting the directives of correctional officers in an open dormitory surrounded by more than sixty other inmates rendered his offense extremely dangerous and rife with the possibility of injury. Considering the circumstances of the offense, defendants attitude toward it, and defendants criminal history, we conclude the trial court did not err in refusing to reduce the offenses to misdemeanors.

DISPOSITION

The abstract of judgment is to be corrected by the clerk of the superior court to reflect a sentence on counts one, three and four of 25 years to life in prison (rather than life with the possibility of parole); the sentences on counts three and four to remain stayed under Penal Code section 654. The clerk of the superior court is directed to forward the corrected abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J.

We Concur:

KLEIN, P. J.

KITCHING, J.

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^[1] On their final ballot, the jury was split six to six.

^[2] While the minute order and reporters transcript both indicate a sentence of 25 years to life, the abstract of judgment erroneously states a sentence of life with the possibility of parole. We will order the abstract of judgment corrected to reflect defendants actual sentence.

^[3]Griffin v. California (1965) 380 U.S. 609.

^[4] Furthermore, the prosecutors comments made clear that he was arguing the prior acts were undisputed by defendants superficial cross-examination. The prosecutor stated, If you believe that those three acts occurred, at least to a preponderance of the evidence, you believe it occurred to that level, they are undisputed, you dont have a dispute that that occurred, the three different not being cuffed, not being extracted, all those things you know, the defendant asked the question, how long ago was that? Trying to say that was a long time ago, and therefore theyre not relevant to you. Thats the point of the question. But he didnt dispute his conduct. So theyre clearly proved by this burden of preponderance.

^[5] The current offense occurred while defendant was in pretrial custody on a narcotics case. He was acquitted of that offense.