P. v. Wriden

Filed 9/29/06 P. v. Wriden CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge. Affirmed.

Richard Schwartzenberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, Marissa A. Bejarano, Deputy Attorney General, for Plaintiff and Respondent.

A jury found defendant guilty of first degree murder (Pen. Code, § 187, subd. (a)).^[1] In addition, the jury found true that defendant had used a handgun in the commission of the murder (§ 12022.53, subd. (b)). Defendant was sentenced to a total term of 50 years to life in state prison. Defendant’s sole contention on appeal is that the prosecutor committed prejudicial misconduct. We find no prejudice and will affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

Late on September 1, 2004, Seretse Black, the victim, was visiting his sister Sonya at her home in San Bernardino. Black stayed with his sister for 60 to 90 minutes, during which they both drank alcohol. Sonya believed her brother was too drunk to leave and asked him to stay. Black left anyway, asking her to accompany him to their mother’s nearby residence, but Sonya refused. Soon after Black left, Sonya heard gunshots.

As Black walked to his car about 2:00 a.m. on September 2, Freddie Jones (identified as defendant’s neighbor) heard Black ask a group of males if they had any drugs. Neighbors (Jones and Andrea Bell) then heard arguing in the street. When Jones saw two males holding guns, Jones went inside, fearing a shooting. From his living room, Jones continued to look outside. Jones watched defendant and a man called Capone leave the group, walk up to Black’s van, and ask Black where he was from. Black responded that “[h]e didn’t gang bang,” and that he was from Pomona. Jones heard Capone and defendant repeatedly ask Black where he was from, i.e., to what gang he belonged. Jones then heard defendant call Black an “offbrand” and tell Black, “We don’t like strays in our neighborhood.” Jones clearly saw defendant, whom he knew only as Lorenzo, with a gun in his hand.

Jones observed Black trying to get into his vehicle and never saw Black with a weapon or point a gun at defendant or Capone. The last comment Jones heard Black say was, “I’m not a gang member.” Thereafter, defendant, who was standing about three to four feet from Black, pointed the gun at Black and fired.

Bell, who was outside her residence on the night of the shooting, also saw the shooting. She observed defendant and Capone run off to Capone’s house after the shooting and conceded telling another neighbor, Bonnie Broadus, that she saw defendant shoot Black. Bell did not see Black with a gun.

Bell’s taped-recorded interview with the police was played for the jury. Bell told the police that she knew defendant as a “Blood” gang member who sold drugs in the neighborhood. Bell had met defendant through his cousin. Bell had previously seen defendant shooting guns, both a shotgun and a .45 semiautomatic. Once Bell saw defendant try to shoot one of his cousins, but the gun jammed. On the night of the shooting, Bell met defendant at 9:00 p.m. at Capone’s house. She noted defendant would come and go from the house, and she assumed he was going out to sell rock cocaine. Later in the evening, Bell heard Capone arguing with Black. She then heard a car engine shut off. Bell went to see what was happening. From her location, she saw defendant “pull out his gun and shoot the guy” in the chest. Bell then saw defendant pick up the shell casing.

Broadus, who knew defendant as “Lorenzo” and was also a neighbor of his, testified that on the day of the incident, she saw defendant on the street with his friend, Capone. About 2:00 a.m., she heard a single gunshot.

Broadus also stated that, on a prior occasion, she saw defendant arguing with another individual in front of “the whole neighborhood” with a shotgun in his hand. Defendant had been seen shooting at other unidentified individuals on the night before the shooting at hand.

San Bernardino Police Officer Jesus Martinez arrived at the scene of the shooting to find Black lying in the middle of the street with a gunshot wound to the chest. A van was parked nearby with its driver’s side door open. Officer Martinez saw no weapons near the body. A semiautomatic magazine was found in the street. An autopsy of Black revealed that Black had suffered an entry and exit gunshot wound to the chest.

The prosecution also established that defendant was a gang member, who at the time of the shooting was residing in “Little Africa,” a neighborhood described by its residents and police officers as dangerous and violent. Broadus and Black’s sister, both residents of Little Africa, and Officer Martinez all testified that it was not uncommon to hear shots fired on a daily basis in that area.

Defendant testified on his own behalf, claiming he shot Black in self-defense and that he had only shot a gun two or three times in his life. He admitted being a gang member, knowing Capone, and owning a shotgun. He denied owning a handgun. He stated that on the day of the shooting, as he was returning home from work, he saw Black exit a van parked in front of a tree. Black approached and stood before defendant and Capone acting intoxicated. Defendant asked Black what he was looking for, but Black remained silent. Black returned to the van and then back to defendant and Capone. Black again just stared at defendant. Black returned to the van, drove down the street, and returned a third time. Defendant claimed that he saw a gun in Black’s hand as he approached the third time. Before Black approached, defendant grabbed a handgun hidden in the bushes. Black fired his gun at defendant. Defendant claimed that no words preceded the shooting and that he fired back out of fear of being shot.

Defendant admitted when Black stepped out of his car, he (defendant) was trying to hide his gun from Black and that Black never said a word to him. In addition, defendant admitted that he shot Black while running away from Black, causing him to fire over his shoulder. He claimed that his ability to hit Black point blank in the chest was just “dumb luck,” having never had target practice.

The defense also presented the testimony of Black’s mother, Ann Lawton, in an attempt to show Black had a gun in his possession on the day of the shooting. Lawton, however, claimed that she never saw Black with any gun on the night of the shooting, not even a BB gun or a pellet gun. Lawton explained that on August 25, 2004, Black took a black, rusty-looking pellet gun.

San Bernardino Police Detective Gary Robertson, who also testified on behalf of the defense, stated that in an interview with Lawton, Lawton told him that on September 1, she saw her son with a black, rusty-looking semiautomatic handgun and a magazine of loaded bullets. Detective Robertson also testified that Lawton was clear it was a gun and not a pellet gun and that, a few days prior to Lawton testifying, she had called him and told him she was mistaken and that the gun she had seen Black with was a BB gun.

San Bernardino County Sheriff’s Criminalist Jason McCauley was also called on behalf of the defense. He testified that he had examined gunshot residue swabs taken from Black at the crime scene. No gunshot residue was observed on Black’s left hand, but he did find three unique particles on the right hand, which could lead to four separate conclusions: (1) the individual fired a firearm; (2) the individual handled a firearm; (3) individual was in close proximity to a discharging firearm; or (4) the individual contacted a surface that contained gunshot residue. Officer McCauley did not have an opinion as to which one of the four conclusions applied in this case, because the gunshot residue test is not specific as to the direct mechanism of how the gunshot residue got deposited onto the hand. On rebuttal, Detective Robertson testified that he had located a full magazine clip four feet from Black’s body.

Detective Robertson interviewed Tyrell Gladden, also known as Capone. The prosecutor asked Detective Robertson, “[I]n your interview with [Gladden], did he tell you something consistent with what the defendant said?” Defense counsel thereafter objected on hearsay grounds. The court sustained the objection and asked if there were any exceptions. The prosecutor replied, “I’m not asking for the statement.” The court then allowed Detective Robertson to answer with a “yes or no.” Detective Robertson answered, “He told me something totally different.” Defense counsel again objected on hearsay. The court sustained the objection, struck the answer, and admonished the jury to disregard the answer. The prosecutor thereafter asked Detective Robertson, “Did Capone tell you a consistent story, consistent with what the defendant said?” Defense counsel again objected on hearsay, and the court sustained the objection. Thereafter, the prosecutor questioned Detective Robertson regarding Capone’s whereabouts. Detective Robertson testified that the police had made an effort to locate Capone but were unsuccessful, and he did not know where Capone was.

Following argument from counsel, the jury found defendant guilty as charged.

II

DISCUSSION

Defendant contends the prosecutor committed prejudicial misconduct by improperly eliciting hearsay testimony from Detective Robertson in an attempt to undercut defendant’s testimony.

Preliminarily, we note claims of prosecutorial misconduct are waived unless the defendant makes a timely objection. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) Furthermore, as a general rule, a defendant may not complain on appeal of prosecutorial misconduct unless, in addition to making a timely objection, he requested that the court admonish the jury to disregard the impropriety. (Ibid.) Here, defense counsel did not object to the prosecutor’s questioning of Detective Robertson on prosecutorial misconduct grounds, request that an admonishment be given, or move for mistrial. He does not contend that the statements were such that an objection would have been futile or that any prejudice was otherwise incurable by an admonition. The claim of error was therefore waived. (People v. Hughes (2002) 27 Cal.4th 287, 372; People v. Jenkins (2000) 22 Cal.4th 900, 1023; People v. Carrera (1989) 49 Cal.3d 291, 320.)

In any event, defendant’s claim lacks merit. “‘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.”’” [Citation.]’ [Citation.]” (People v. Smithey (1999) 20 Cal.4th 936, 960.) “‘It is, of course, misconduct for a prosecutor to “intentionally elicit inadmissible testimony.” [Citations.]’ [Citation.]” (Ibid., quoting People v. Bonin (1988) 46 Cal.3d 659, 689, quoting People v. Sims (1976) 64 Cal.App.3d 544, 554.) However, “in the absence of prejudice to the fairness of a trial, prosecutor misconduct will not trigger reversal. [Citation.]” (People v. Bolton (1979) 23 Cal.3d 208, 214.)

Assuming, without deciding, that the prosecutor committed misconduct, the prosecutor’s continued questioning of Detective Robertson about Capone’s statements could not possibly have prejudiced defendant under either prejudice standard. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836; People v. Milner (1988) 45 Cal.3d 227, 245.) If misconduct deprived the defendant of due process under the federal Constitution, we will reverse unless the People prove beyond a reasonable doubt that the error did not contribute to the jury’s verdict. (People v. Bell (1989) 49 Cal.3d 502, 533-534, citing Chapman, at p. 24.) If the prosecutor’s conduct violated our state Constitution, we will reverse if there is a clear showing of a miscarriage of justice. (People v. Hill (1998) 17 Cal.4th 800, 844, citing Cal. Const., art VI, § 13.)

The evidence of defendant’s guilt here was overwhelming and established that defendant did not shoot the victim in self-defense. None of the eyewitnesses saw the victim with a weapon or saw him point a gun at defendant. Likewise, defendant’s testimony showed that defendant never saw a gun or any other weapon on Black, that Black never said a word to him, and that he was trying to hide his gun from Black. The evidence patently shows that the events leading up to the shooting do not support the theory that this was a shooting in self-defense, but rather that it was a senseless, possibly gang-related shooting. The evidence demonstrated that defendant was a gang member, who at the time of the shooting was residing in Little Africa, a neighborhood described by its residents and police as dangerous and violent. After Black approached a group of men (which included defendant and Capone) to ask if they had any drugs, defendant asked Black where he was from. Black responded that “[h]e didn’t gang bang” and that he was from Pomona. Defendant called Black an “offbrand” and told Black, “We don’t like strays in our neighborhood.” Defendant then admittedly shot Black essentially point blank in the chest. Eyewitness Jones unequivocally testified that he saw defendant with a gun in his hand and that he never saw Black with a weapon or point a gun at defendant or Capone.

On the other hand, defendant’s claim of self-defense was incredible, contradicted that of the eyewitnesses, and was rejected by the jury. Defendant claimed that he had only shot a gun two or three times in his life and that he had never had target practice. Additionally, in support of his self-defense claim, defendant stated that he fired over his shoulder, while running, hitting Black in the chest, and that the shot was “dumb luck.” However, the prosecution presented several prior bad acts involving the use of guns by defendant, including the night before the shooting, when he shot at other unidentified individuals. In addition, on a prior occasion, Broadus, defendant’s neighbor, saw defendant arguing with another individual in front of “the whole neighborhood,” with a shotgun in his hand. Similarly, Bell, another of defendant’s neighbors and acquaintances, had previously watched as defendant attempted to shoot his own cousin. Hence, even if the questioning by the prosecutor was improper, given the overwhelming evidence showing lack of self-defense, any improper questioning was harmless.

Moreover, any improper questioning was de minimus. The alleged misconduct consisted of three questions and answers, with interspersed objections. The questions and answers at issue are but one page in a reporter’s transcript that exceeds 450 pages. Furthermore, any impropriety in the prosecutor’s questions was cured when the trial court sustained the objections, struck the answer, and ordered the jury to disregard it. In addition, at the conclusion of the case, the trial court instructed the jury with CALJIC No. 1.02, which provided: “If an objection was sustained to a question, do not guess what the answer might have been. Do not speculate as to the reason for the objection. Do not assume to be true any insinuation suggested by a question asked a witness.” We must presume the jury followed these instructions. (People v. Horton (1995) 11 Cal.4th 1068, 1121.)

Finally, the prosecutor did not refer to the alleged inadmissible evidence during his closing argument. Instead, in discussing defendant’s testimony, he offered numerous other reasons, based on evidence properly adduced at trial, why defendant’s testimony should be discredited. The prosecutor pointed out how defendant’s testimony contradicted the testimony of eyewitnesses; he highlighted the fact that defendant testified he was no longer a gang member, despite the fact that defendant informed law enforcement, at the time of booking, that he was a Pueblo Blood gang member; and he reminded the jury that defendant admitted to lying about an employment drug test and that though defendant claimed Black never said a word to him, eyewitnesses testified otherwise. The prosecutor also stressed the incredible nature of defendant’s story, namely that defendant claimed he had only shot a gun twice in his life, but was able as he ran from Black to fire over his shoulder and miraculously hit Black in the center of his chest.

Based on the foregoing, we find any error to be harmless. Indeed, appellate courts have found no prejudice in cases much more flagrant than this. For example, the Court of Appeal in People v. Simington (1993) 19 Cal.App.4th 1374 noted the case of People v. Fields (1983) 35 Cal.3d 329, 362, in which the prosecutor offered a long and grisly narrative speculating about what a victim must have felt as he was being shot by the defendant. The court observed that in Fields, “the prosecutor invited the jury to ‘view the case through the eyes of the victim.’ This invitation was deemed misconduct since it encouraged jurors ‘to depart from their duty to view the evidence objectively . . . .’ [Citation.]” (Simington, at p. 1379.) Nevertheless, the error in Fields was not prejudicial. (Simington, at p. 1379.) The challenged questioning of Detective Robertson by the prosecutor is much less egregious than the tactic employed in Fields. (See also People v. Pensinger (1991) 52 Cal.3d 1210, 1250 [inviting jury to suppose own children were victims was held to be misconduct]; People v. Pitts (1990) 223 Cal.App.3d 606, 705 [argument accusing defense counsel of contributing to “ruination” of victim is misconduct]; People v. Jones (1970) 7 Cal.App.3d 358, 363 [prosecutor crudely appealed to the fears and emotions of the jurors by stating “to the effect that the sons of the jurors and their girl friends dare not ride motorcycles into an area where the appellant is located, because he reacts seriously”].) In addition, in Pensinger and Jones, as in Fields, the higher courts found the misconduct to be nonprejudicial. (Pensinger, at pp. 1250-1251; Jones, at pp. 363-364; Fields, at pp. 362- 363.)

Defendant argues the prosecutor’s misconduct in eliciting inadmissible hearsay violated his constitutional right to confrontation.

This case is analogous to People v. Bell, supra, 49 Cal.3d 502. There, the prosecutor asked a defense expert whether he had considered an informant’s statement in a police report that the defendant “‘”had been observed in possession of a small-barreled gun and was cleaning the weapon the day before the crime.”’” (Id. at p. 532.) Defense counsel objected; the trial court sustained the objection and instructed the jury to disregard the statement. The Supreme Court held the prosecutor had committed misconduct by intentionally attempting to elicit inadmissible evidence. (Ibid.) Next, the defendant argued that the evidence which the prosecutor had effectively placed before the jury violated the confrontation clause. The Supreme Court responded: “Here the prosecutor did put before the jury a statement by a person unavailable for questioning at trial. The statement did not directly implicate defendant in the crimes, however, and there was other, uncontradicted testimony that defendant had obtained a handgun from his father not long before the crimes. In addition, the trial judge promptly admonished the jury that it was to disregard the prosecutor’s statement. Assuming therefore that the misconduct asserted here must be treated as a denial of defendant’s right of confrontation and cross-examination, and thus as an impermissible infringement of a specific guaranty of the Bill of Rights, reversal is not required. We are satisfied beyond a reasonable doubt that this instance of prosecutorial misconduct alone did not affect the verdict. [Citation.]” (Id. at p. 534.)

The Supreme Court also held the defendant’s due process rights were not violated: “‘When the defendant contends that a prosecutor’s question rendered his trial fundamentally unfair, it is important “as an initial matter to place th[e] remar[k] in context.” [Citations.] The sequence of events . . . -- a single question, an immediate objection, and two curative instructions[] -- clearly indicates that the prosecutor’s improper question did not violate [defendant’s] due process rights.’ [Citations.]” (People v. Bell, supra, 49 Cal.3d at p. 534, quoting Greer v. Miller (1987) 483 U.S. 756, 765-766.)

All of the factors on which the Supreme Court relied in Bell are equally present here. Detective Robertson’s response, which was stricken, did not directly implicate defendant; it merely showed that Capone told the detective something different than what defendant said. It is unknown what the “something different” was. Moreover, the response was stricken, and the jury was ordered to disregard it. There was a single question about Capone’s statement to the detective asked three times with immediate objections. The trial court gave curative instructions. We conclude that defendant cannot show reversible error based on any constitutional violation.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

HOLLENHORST

Acting P.J.

KING

J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

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