P. v. Simmons
Filed 8/14/13 P. v. Simmons CA1/3
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
CHRISTOPHER
DEAN SIMMONS,
Defendant and Appellant.
A136111
(Marin
County
Super. Ct.
Nos. SC179305A,
SC180759A)
Christopher
Dean Simmons appeals following a jury verdict that found him guilty of a single
count felony violation of Penal Code section 422: making a criminal
threat. He argues that the trial court
committed constitutional error when
it sustained an objection to a chart addressed to the reasonable doubt standard
of proof that his counsel wished to use during closing argument. He also claims that the trial court erred
when it failed to award him credit for all his presentence time in custody in
this case.
We conclude
that the trial court’s exclusion of the chart was not an abuse of discretion,
and that its exclusion did not have constitutional implications. We also conclude that the court should have
awarded Simmons full credit for his presentence time in custody. Thus, we modify the abstract of judgment to
reflect the proper award of credits and, as modified, affirm the judgment.
BACKGROUND
Simmons was
arrested after a fellow student at the College of Marin informed campus police
that Simmons had threatened her.
Following a jury trial, Simmons was convicted of making a
Code section 422. Enhancements were
proven true, and he was given a five-year prison sentence. Discussion of the facts surrounding the
offense is not necessary to resolution of this appeal, so we will dispense with
them.
During
closing argument, Simmons’s counsel showed a chart to the jury that at the top
bears the heading: “States of Mind Requiring Acquittal.†According to Simmons, the “chart sought to
describe to the jury the states of mind establishing reasonable doubt and
requiring an acquittal.†Below the
heading, the chart listed the following descriptors with an arrow next to each
pointing to the words “Not Guilty.†The
descriptors were: “Highly likely,†“Likely,†“Strong Suspicion,†“Suspicion,â€
“Possibly†and “Unlikely.†The court
sustained the prosecution’s objection to the use of this chart and denied
Simmons’s motion for mistrial based on its exclusion.
DISCUSSION
I
A ruling on
a motion for mistrial is reviewed for an abuse of discretion, and may be
granted by the trial court only when a party’s chance at a fair trial is
irreparably damaged. (
283.) Essentially, Simmons argues the
chart was so critical to his defense that its exclusion deprived him of his
right to present a complete defense and have his lawyer present a closing
argument. Even assuming the evidence of
Simmons’s guilt was hotly contested and in conflict, the record does not
support Simmons’s characterization that the chart had such critical importance.
First of
all, the jury was properly instructed pursuant to CALCRIM 221 on the
prosecution’s burden to prove each of the allegations beyond a reasonable
doubt. But more importantly, Simmons’s
lawyer argued at length the possibility that the prosecution had not met its
burden. He argued the victim presented a
story without corroboration; that the standard is not met by a preponderance of
the evidence; that when inferences drawn from the evidence may reasonably point
equally to guilt or innocence, the jury had to reject the inference of guilt
and accept the inference of innocence; that reasonable doubt is not the
impossibility of doubt, but an abiding conviction that leaves jurors convinced
of guilt as time passes; that a possibility the crime occurred was not enough
and that “[d]oubt is everywhere in this case.â€
Even if we were to assume that the
proffered chart accurately encapsulates the standards that compel a not guilty
verdict, in light of the court’s instruction and the argument made by defense
counsel, the court did not abuse its discretion when it denied Simmons’s motion
for mistrial.
title="">[1] Moreover, nothing in this record approaches
the kind of restriction on counsel’s performance that may plausibly lead to
constitutional error. The denial of the
use of the chart during closing argument just did not have constitutional
significance.
II
At the time
he was arrested on the charge in this case, Simmons was on postrelease
community supervision in Marin County case number SC180759A. He was charged with a violation of his
release conditions, and the trial court revoked his postrelease community
supervision solely on the basis of his conviction in this case for making a
criminal threat.
Because revocation charges were
pending for part of Simmons’s time in custody, the trial court split the award
of custody credits between the revocation proceedings and this case. Thus, when it sentenced Simmons to prison in
this case, the court excluded the time Simmons was in custody pending the
hearing on his revocation in case number SC180759A from the award of
presentence credits. As Simmons argues,
and the Attorney General agrees, this was error.
At the time
he was charged with violating the terms of his postrelease community
supervision, Simmons was in custody due to the charges brought against him in
this case. He was found to have violated
the terms of his postrelease program because he was found guilty in this
case. In this way the conduct that led
to his conviction was the sole reason for his loss of pretrial liberty, and his
sentence in the criminal threats case should be credited with all his time in
custody. (People v. Bruner (1995) 9 Cal.4th 1178, 1191.) Accordingly, the abstract of judgment should
be amended to reflect 151 days of presentence credits for time served and 151
days of presentence conduct credits, for a total award of 302 days of
presentence credits in case number SC179305A.
Our
adjustment of the presentence credits awarded in case SC179305A pursuant to
Penal Code section 2900.5 has no effect on the credits awarded by the trial
court under section 4019 in case SC180759A, when the trial court sentenced
Simmons to 74 days in county jail for the violation of the terms of his
postrelease community supervision.
DISPOSITION
The
abstract of judgment shall be amended to reflect 151 days of credit for time
served and 151 days of conduct credit for a total award of 302 days of
presentence credits. As modified, the
judgment is affirmed.
_________________________
Siggins,
J.
We concur:
_________________________
Pollak, Acting P.J.
_________________________
Jenkins, J.
name="_ftn1" title="">[1] To
be clear, we need not and do not make any determination that the chart was
legally accurate.
