P. v. Sumter

Filed 9/27/06 P. v. Sumter 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 Riverside County. Russell F. Schooling, Judge. (Retired judge of the former L.A. Mun. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part, reversed in part with directions.

Jeffrey J. Stuetz, 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, and Kristen K. Chenelia, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Shelvin Terrell Sumter appeals from a jury conviction for two counts of kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1));^[1] and one count each of robbery (§ 211), carjacking (§ 215, subd. (a)), and kidnapping in the course of a carjacking (§ 209.5). He contends that the prosecutor committed prejudicial misconduct during closing argument; that the trial court committed reversible error by failing to sua sponte instruct the jury with a unanimity instruction; that his conviction for carjacking should be reversed because it is a lesser included offense to kidnapping in the course of a carjacking; and that the trial court imposed an unauthorized fine pursuant to section 1202.5, subdivision (a).

FACTUAL AND PROCEDURAL HISTORY

Defendant was first charged in a three-count felony complaint with kidnapping, carjacking, and robbing William Caldwell (Caldwell) on March 30, 2003. The charges were later amended to include kidnapping and robbing a second victim, John Mills (Mills), on September 9, 2002. Both victims testified to similar events beginning at the same Texaco gas station.

On September 9, 2002, Mills said he pulled up to the entrance of the self-service car wash and opened his window to pay. Defendant approached asking for some money

to buy gas. Mills indicated he would help, and while he was in the car wash, he pulled out a $5 bill to give defendant. When he exited the car wash, defendant approached Mills and entered the truck through the passenger side door. Mills believed defendant had a weapon under his shirt, but he did not see the object clearly. Defendant ordered Mills to drive the truck and then gave him specific directions to a dark location where he told Mills to stop. Once the truck was stopped, defendant removed the keys from the ignition and directed Mills to turn over his wallet. Mills complied. Defendant took Mills’s money, got out of the truck, and threw the keys back to Mills.

Caldwell testified he drove into the same gas station on March 30, 2003, to buy gas and fix the stereo in his truck. While Caldwell was working on his stereo, defendant approached showing a Bible and asking for money to help his daughter. Caldwell tried to ignore defendant, but defendant followed him into the mini-mart while he was paying for his gas. Defendant approached Caldwell again while he was pumping gas. When Caldwell unlocked his truck and got in, defendant also got in through the passenger side door. At this point, Caldwell noticed a bulge underneath defendant’s sweater and became afraid. He therefore complied when defendant gave specific directions where to drive his truck. After Caldwell stopped the truck where defendant directed him to do so, defendant grabbed the keys from the ignition and demanded money. When he realized Caldwell did not have much money, defendant indicated he would take the stereo from Caldwell’s truck. He then directed Caldwell to drive to a second location and to remove the stereo equipment from the truck. Once the stereo equipment was removed, defendant returned the keys to Caldwell and told him to drive away. Caldwell complied.

Defendant testified in his own defense, admitted to being a drug dealer, and claimed both Mills and Caldwell had approached him at the Texaco station to buy drugs. Defendant admitted to entering their trucks and directing them to drive to another location to get the drugs he agreed to sell them. He said he gave Mills sugar instead of drugs and he only gave Caldwell half the amount of drugs he agreed to sell him. The defense theory of the case was that Mills and Caldwell reported him to the police because he cheated them. To support this theory, defendant also presented testimony by the gas station attendant who was working at the Texaco station on March 30, 2003, when Caldwell entered to pay for his gas. The attendant indicated he thought Caldwell and defendant came in together and were friends. In addition, both Mills and Caldwell testified they had previously used drugs and had to complete drug diversion programs.

On February 23, 2005, the jury found defendant guilty on all of the charges. The trial court sentenced defendant to two consecutive terms of seven years to life in state prison for the two kidnapping for robbery offenses and stayed the sentence on the remaining counts pursuant to section 654. The trial court also ordered defendant to pay restitution, and imposed various penalties and fees.

DISCUSSION

Prosecutorial Misconduct

Relying on People v. Collins (1968) 68 Cal.2d 319, 324-333 (Collins), defendant complains the prosecutor inappropriately referred to statistics and odds to bolster the credibility of the victims. In his opening argument, the prosecutor stated: “I could not fathom the odds of two people coming up with the same story, with the same accounting of the facts seven months apart. . . . The ludicrousness of trying to believe that this is two separate drug ripoffs and that the victims are simply retaliating against him is ludicrous. The exact same conduct. . . . I can’t stress enough that defendant’s accounting of the facts of two separate drug deals gone bad, that he can -- as a man who says he’s dealt drugs during that entire period of time he was there, that he can remember these two specific incidents and that these two people that he claims are vindictive against him because he ripped them off on a drug sale, these two people in a 7-month time period can come up with the identical same story. I cannot -- I took statistics in college, and I cannot imagine how that can be. . . . It is almost impossible for two people seven months apart to come up with that explanation without it being the exact same. Defendant’s story is nothing but that. It’s a story. . . . Don’t be fooled.”

During rebuttal, the prosecutor argued once again that the two victims were credible because they gave “almost identical” testimony. He later stated as follows: “Because, once again, going back to statistics, two separate people have made up -- not made up. Two separate people have relayed almost exactly the same thing. . . . To believe defendant’s story in any facet based on the evidence here is just inappropriate. It can’t have happened. The odds are phenomenal.”

Defendant argues these statements were prejudicial because there was no statistical probability testimony admitted into evidence to support the argument and the prosecutor’s remarks improperly encouraged the jury to convict based on statistical or mathematical improbability.

A defendant is not entitled to relief for prosecutorial misconduct under the federal Constitution unless it renders the trial fundamentally unfair or under state law unless it involves “‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’” (People v. Harris (2005) 37 Cal.4th 310, 341, quoting People v. Benavides (2005) 35 Cal.4th 69, 108.) A prosecutor is given wide latitude in arguing a case to the jury as long as it amounts to fair comment on the evidence. A prosecutor may also refer to matters of common knowledge or illustrations drawn from common experience which are not in evidence. (People v. Hill (1998) 17 Cal.4th 800, 819.) “[W]hen 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.)

The Attorney General asserts that defendant waived this issue by failing to object. “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.” (People v. Price (1991) 1 Cal.4th 324, 447.) Here, defendant concedes there was no timely objection to any of the prosecutor’s alleged improper comments during trial. Defendant argues, however, his counsel’s failure to object constituted ineffective assistance of counsel under the Supreme Court’s decision in Strickland v. Washington (1984) 466 U.S. 668, 671, 686, 691-692. To forestall such a claim, we address defendant’s prosecutorial misconduct issues.

The facts and circumstances of this case are simply not analogous to those considered in Collins. In Collins, supra, 68 Cal.2d 319, a robber was generally identified by a victim and a witness as a Caucasian female with a blonde ponytail who escaped in a yellow car driven by a Black man. The prosecution called a mathematics professor to provide expert testimony suggesting the probability of a couple meeting that description was approximately one in 12 million, so it could therefore be inferred there was only one chance in 12 million that the codefendants were innocent of the robbery. (Id. at p. 325.) The Supreme Court held that the testimony lacked adequate evidentiary foundation and that the methodology applied was mathematically unsound. In its analysis, the Supreme Court expressed doubt any prosecutor, defense attorney, or jury untrained in mathematics could be expected to discern the flaws in the expert’s testimony, and, as a result, the jury was distracted from properly weighing and considering the evidence on the issue of guilt. The Supreme Court concluded the admission of the statistical probability testimony at trial was a miscarriage of justice. (Id. at pp. 331-333.) People v. Purvis (1963) 60 Cal.2d 323, 350-252 and People v. Hernandez (1997) 55 Cal.App.4th 225, 239-243, cited by defendant in support of his argument, also involved mathematical/statistical evidence. Here, the prosecutor did not present complex statistical or mathematical probability testimony by a mathematical expert, which lacked evidentiary foundation and was based on a flawed and misleading mathematical theory. Rather, the prosecutor’s remarks were based on a simple, common sense interpretation of the evidence. As a matter of common experience, it would be unlikely two otherwise unconnected individuals could fabricate such similar accounts of separate but similar crimes committed seven months apart. Although the prosecutor used the words “odds” and “statistical,” he was making an acceptable argument regarding the reasonableness of defendant’s account. (CALJIC Nos. 2.01, 2.20.) Therefore, this argument was not misconduct, but a discussion of the facts and inferences the prosecutor thought the evidence warranted. (People v. Medina (1995) 11 Cal.4th 694, 757.)

Defendant also complains the prosecutor improperly vouched for the credibility of the victims during closing argument by indicating he believed the victims as reflected by his charging decision and by implying he had personal knowledge of facts not available to the jury. We disagree.

“A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record.” (People v. Frye (1998) 18 Cal.4th 894, 971.) “Nor is a prosecutor permitted to place the prestige of [his] office behind a witness by offering the impression that [he] has taken steps to assure a witness’s truthfulness at trial.” (Ibid.) However, a prosecutor may comment on the honesty or reliability of a witness as long as it is based on evidence in the record or inferences reasonably drawn from the evidence rather than his own personal knowledge or belief. (Ibid.)

As defendant contends, the prosecutor did say: “You don’t have a gun allegation because these two victims told you what they saw. They told the truth. They saw a bulge. . . .” However, just prior to the remark about the absence of a gun allegation, the prosecutor argued it was unlikely the victims were motivated by revenge. If the victims had been motivated to fabricate their stories out of revenge, the prosecutor reasoned he would have expected the victims to allege defendant brandished and threatened them with a gun because this would have ensured defendant would serve an enhanced sentence. In other words, defendant has taken the prosecutor’s comments out of context.

Read in context, we do not find these assertions by the prosecutor to be improper vouching for the credibility of the witnesses. Rather, the prosecutor was simply using the witnesses’ testimony about the bulge they saw in defendant’s shirt or sweater to illustrate a weakness in the defense theory of the case, which was that the victims told their respective stories out of revenge for a bad drug deal. It is not improper for the prosecutor “to persuade jurors to draw inferences based on the evidence.” (People v. Frye, supra, 18 Cal.4th at p. 972.) The prosecutor’s remarks did not in any way refer to evidence outside the record or imply personal knowledge of information not made available to the jury. We detect no possibility the jury could have construed or applied the prosecutor’s remarks in an objectionable or unduly prejudicial manner.

CALJIC No. 17.01

With respect to the kidnapping for robbery, carjacking, and kidnapping in the commission of carjacking counts involving victim Caldwell (counts 2, 4, 5), defendant argues the trial court committed prejudicial, reversible error by failing to sua sponte instruct the jury with CALJIC No. 17.01. Defendant contends CALJIC No. 17.01 was necessary to protect his right to a unanimous verdict because the jury could have disagreed as to which acts constituted the kidnapping.

“A requirement of jury unanimity typically applies to acts that could have been charged as separate offenses.” (People v. Maury (2003) 30 Cal.4th 342, 422.) “A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.” (Ibid.) “The unanimity instruction is not required when the acts alleged are so closely connected as to form part of one transaction.” (People v. Stankewitz (1990) 51 Cal.3d 72, 100.) Acts form part of a single transaction “when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.” (Ibid.)

Because there was no unanimity instruction by the trial court, defendant contends the jurors may have disagreed about two factually distinct events which could have served as a basis for the jury’s kidnapping verdict, and, as a result, the kidnapping verdict may not be unanimous. Caldwell testified defendant entered the passenger seat of his truck and gave him specific directions as to where to drive. Caldwell complied because he had seen a bulge under defendant’s sweater and was afraid. Caldwell parked his vehicle where defendant told him to do so. Defendant then pulled the keys out of the ignition and demanded money from Caldwell. When he learned Caldwell did not have much money, defendant indicated he was going to take Caldwell’s stereo. Caldwell indicated he did not want to give up the stereo and defendant said, “Is it worth losing your life over this stereo?” Defendant then directed Caldwell to drive and park at another location. At this second location, defendant told Caldwell to unhook the components of the stereo from the vehicle and place them on the sidewalk. Caldwell complied.

Defendant contends some jurors could have concluded a kidnapping commenced at the Texaco station and continued until defendant released Caldwell. Other jurors could have disagreed, believing there was no kidnapping at the Texaco station because Caldwell voluntarily left there with defendant in his vehicle to help defendant, but a kidnapping commenced later when Caldwell moved his vehicle the second time at defendant’s direction. We hold that these acts are so closely connected they were part of a single transaction. Contrary to defendant’s contention, the two drives were closely connected in time and space. Both drives were relatively short distances, within a few minutes of each other, and were committed with the same intent--to deprive a single victim of his property. The facts suggest a single, continuous scheme and are not indicative of two separate and distinct kidnappings. Finally, defendant offered essentially the same defense to all of the charges. (See, e.g., People v. Haynes (1998) 61 Cal.App.4th 1282, 1295-1296.) Therefore, no unanimity instruction was necessary and a reversal of the jury’s kidnapping verdict is unjustified.

Lesser Included Offense of Carjacking

The jury convicted defendant of carjacking Caldwell in violation of section 215, subdivision (a) (count 4). The jury also convicted defendant of kidnapping Caldwell during the commission of a carjacking in violation of section 209.5 (count 5). The parties agree defendant’s conviction for carjacking should be reversed because carjacking is a lesser included offense of kidnapping during the commission of a carjacking. We also agree. “[A] violation of section 209.5 ‘during the commission of a carjacking’ requires a completed offense of carjacking. Therefore, carjacking is necessarily included in a violation of section 209.5. Where defendant is convicted of a greater and an included offense, reversal of the conviction for the included offense is required.” (People v. Contreras (1997) 55 Cal.App.4th 760, 765.)

Fines and Penalty Assessments

Defendant argues the trial court imposed an unauthorized fine of $52.60. Defendant believes the trial court was only authorized to impose a $10 fine. Although the trial court did not explain the basis for the penalty, it appears to have followed a recommendation in the probation officer’s report stating defendant should be ordered to pay $52.60 pursuant to section 1202.5.

In relevant part, section 1202.5, subdivision (a), provides as follows: “In any case in which a defendant is convicted of any of the offenses enumerated in Section 211, 215 . . ., the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed.” Respondent agrees the $52.60 penalty is unauthorized and should be reduced to $10. However, respondent contends the total amount of fines and penalty assessments should be $27, not $10, because defendant is required to pay a second $10 penalty assessment pursuant to section 1464, subdivision (a), as well as a $7 penalty assessment pursuant to Government Code section 76000, subdivision (a). Defendant does not dispute these additional fines and assessments.

Therefore, the fine imposed under section 1202.5, subdivision (a), is reduced to $10. Additionally, the judgment is modified to impose a $10 penalty assessment under section 1464, subdivision (a), and a $7 penalty assessment under Government Code section 76000, subdivision (a). (People v. Talibdeen (2002) 27 Cal.4th 1151, 1153-1157.)

DISPOSITION

The conviction for carjacking in violation of section 215, subdivision (a) in count 4, is reversed, and the superior court is directed to dismiss count 4. The penalty of $52.60 imposed under section 1202.5, subdivision (a), is reduced to $10. The judgment is modified to impose a $10 penalty assessment under section 1464, subdivision (a), and a $7 penalty assessment under Government Code section 76000, subdivision (a). The superior court is directed to amend the abstract of judgment to reflect the above modifications and to transmit a copy of the amended abstract of judgment to the Department of Corrections. The judgment is affirmed in all other respects.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

MILLER

J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

^[1] All further statutory references are to the Penal Code, unless otherwise specified.