Opinion
A148195
09-19-2017
THE PEOPLE, Plaintiff and Respondent, v. DERRICK RAY CALDWELL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR317725)
A jury convicted defendant Derrick Caldwell of second degree robbery and assault by means of force likely to produce great bodily injury after he stole a cell phone from the victim and then punched and kicked him in the face. On appeal, Caldwell claims that his assault conviction must be reversed because insufficient evidence of force likely to produce great bodily injury was presented both at trial and at the preliminary hearing. He also claims that both convictions must be reversed because in closing argument the prosecutor committed Griffin error by implicitly referring to Caldwell's failure to testify and improperly shifted the burden of proof. We affirm.
Griffin v. California (1965) 380 U.S. 609.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Around 8:15 p.m. on November 15, 2015, D.C. and L.W., two employees of Buffalo Wild Wings at the Solano Mall in Fairfield, were taking a cigarette break behind the restaurant. As the two talked, D.C. was also sending text messages on his cell phone.
A man wearing a gray sweatshirt with the hood covering most of his upper face, gray sweatpants, and gray shoes approached the two employees. L.W. asked him if she could help him "because he wasn't dressed in a typical uniform or anything that would convey he worked at the mall." L.W. described the man as an African American with "[m]edium to dark" skin in his late twenties or early thirties who was at least six feet tall, had a "thinner frame," and had "stubbly" facial hair, and at trial she identified him as Caldwell. Similarly, D.C. described the man, whom he also identified as Caldwell at trial, as a tall African American with "[d]ark" skin in his late thirties or early forties who had a normal build and "scruffy" facial hair.
After asking L.W. how her night was going, Caldwell snatched the cell phone from D.C.'s hands. D.C. tried to retrieve his phone by grabbing for it, at which point Caldwell punched him in the face, and D.C. "stumble[d] down to the ground" onto his hands and knees. As D.C. tried to get up, Caldwell kicked him in the face, knocking D.C.'s glasses off and causing D.C. to stumble again.
Meanwhile, L.W. opened the restaurant's back door and called for help. J.B., a manager at the restaurant, came outside and saw Caldwell, whom J.B. described as about six feet tall with a slim build and "[d]ark" skin, fighting D.C. J.B. chased Caldwell across the parking lot as Caldwell fled with the cell phone. As they were running up some steps, both J.B. and Caldwell fell, and Caldwell kicked J.B. in the face, causing his nose to bleed. Caldwell was able to escape, and J.B. called 911.
J.B. did not identify Caldwell at trial, indicating that he did not get a good enough look at the suspect's face.
Officers Bee Xiong and Robert Piro of the Fairfield Police Department responded to Buffalo Wild Wings soon after the robbery and assault occurred. J.B. gave a brief description of the suspect, which Officer Xiong described as "the same description that was given out to dispatch, a black male adult approximately six feet tall, wearing . . . a gray sweater . . . and dark-colored pants." Later, the officer reviewed a copy of a security video recording from the restaurant, which showed Caldwell "lunge[]" at D.C. as he wound up his arm to punch D.C. before the two men moved out of the camera's view, followed by "a brief scuffle" between them and J.B.'s pursuit of Caldwell. The copy of the recording was played for the jury.
The original recording was erased before the police requested it, but the restaurant was able to provide a manager's cell phone recording of portions of the footage.
Officers Xiong and Piro used the "Find My iPhone" application on J.B.'s cell phone to track D.C.'s cell phone. The application initially showed that D.C.'s phone was in the bushes near a Ross store in the mall, and Officer Piro checked that location but did not find anything. Officer Xiong then informed Officer Piro that the application "was pinging in the area of Northbay Medical Center." Both officers responded to the parking lot of the medical center's offices, which were closed for the night.
Officer Xiong spotted Caldwell lying in the driver's seat of a car parked in the lot. Caldwell was wearing a dark-colored shirt and pants, and a black jacket covered his torso and face. Officer Xiong testified that although it was a cold night, Caldwell was sweating, and he did not appear to be under the influence of a controlled substance. The officer called D.C.'s number and heard the phone ringing inside Caldwell's car. Officer Xiong then retrieved the phone from the car's glove compartment. The car was full of clothing, but the officers were unable to find any clothing that matched the witnesses' description of what the suspect had been wearing.
After the officers detained Caldwell, whose driver's license said that he was six feet, three inches tall, a third Fairfield police officer took D.C. to the Northbay Medical Center parking lot to see whether D.C. could identify Caldwell. The officer gave D.C. a standard admonishment not to assume that Caldwell was the suspect merely because he was in custody. D.C. indicated he was unsure whether Caldwell was the suspect because Caldwell was wearing different clothes. After moving closer, D.C. recognized Caldwell's facial features and identified him as the suspect.
Shortly afterward, Caldwell was brought outside the Buffalo Wild Wings for two other showups. First, L.W. was asked to identify him and given the same admonishment that D.C. received. After she commented that Caldwell was wearing different clothes than the suspect's, a police officer told her that "sometimes they do change their clothes" and asked her "to focus on [Caldwell's] face and his height." She then identified Caldwell, telling the police that she was "99 to a hundred percent certain." At trial, she testified that she was now around "75 percent sure" about the identification.
J.B. was also asked to identify Caldwell after being read the same admonishment. J.B. testified that at the time, he told the police that " 'it looks like him' " and that Caldwell matched the description but that the clothing was different and J.B. was not " 'a hundred percent sure' " about the identification.
Dr. Robert Shomer, Ph.D., an experimental psychologist, testified for the defense as an expert in memory perception and eyewitness identification. He stated that several factors can bear on the reliability of an identification, including the lighting, the witness's stress level and opportunity to observe, and whether the witness has characteristics similar to those of the person being identified. He testified that field showups, the procedure used here, are "extremely problematic" because they are "inherently suggestive." He also testified that "there is no usable relationship between how confident and sure somebody is of their eye[]witness ID and the actual accuracy of that ID" and noted that to date 330 people had been exonerated of crimes after being erroneously identified. He made clear, however, that he was not offering an opinion on whether a particular witness's identification was accurate. Caldwell did not testify.
The jury convicted Caldwell of second degree robbery and assault by means of force likely to produce great bodily injury, both felonies, and the trial court found true the allegations that he had three prior prison terms. The court sentenced him to a total term of eight years in prison, comprised of a term of five years for the robbery and three consecutive one-year terms for the prior-conviction findings. The court imposed and stayed under section 654 a term of four years in prison for the assault.
Caldwell was convicted under Penal Code sections 211 (robbery) and 245, subdivision (a)(4) (assault). The prior-conviction allegations were found true under Penal Code section 667.5, subdivision (b). All further statutory references are to the Penal Code.
II.
DISCUSSION
A. Caldwell's Claims Involving the Evidence of Force Likely to Cause Great Bodily Injury Both Fail.
Caldwell claims that his assault conviction must be reversed because the evidence of force likely to produce great bodily injury presented at the preliminary hearing was insufficient to charge him with the offense and the evidence of that element presented at trial was insufficient to convict him. We conclude that there was sufficient evidence to sustain the conviction. We also conclude that, as a result, any deficiency in the evidence presented at the preliminary hearing was harmless.
1. Sufficient evidence supports the assault conviction.
Section 245, subdivision (a)(4) makes it a crime to "commit[] an assault upon the person of another by any means of force likely to produce great bodily injury." "Great bodily injury" is defined as "bodily injury which is significant or substantial, not insignificant, trivial or moderate." (People v. McDaniel (2008) 159 Cal.App.4th 736, 748.) " 'The statute prohibits an assault by means of force likely to produce great bodily injury, not the use of force which does in fact produce such injury. While . . . the results of an assault are often highly probative of the amount of force used, they cannot be conclusive.' " (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1065-1066 (Armstrong); see also People v. Golde (2008) 163 Cal.App.4th 101, 123 [no requirement that victim sustain any bodily injury].) Whether an assault was committed by means of force likely to produce great bodily injury is a question of fact for the jury. (Armstrong, at p. 1066.)
The use of hands or feet to inflict force can suffice to support a conviction of assault by means of force likely to produce great bodily injury. (People v. Aguilar (1997) 16 Cal.4th 1023, 1026, 1028; see, e.g., Armstrong, supra, 8 Cal.App.4th at p. 1066.) "Whether a fist [or foot] used in striking a person would be likely to cause great bodily injury is to be determined by the force of the impact, the manner in which it was used[,] and the circumstances under which the force was applied." (People v. McDaniel, supra, 159 Cal.App.4th at pp. 748-749.) We evaluate "the force actually used by the [defendant] to determine if it was likely to cause great bodily injury to the victim," not the threat posed based on "the force that the [defendant] could have used against the victim." (People v. Duke (1985) 174 Cal.App.3d 296, 303.)
In evaluating Caldwell's claim, " 'we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.' " (People v. Covarrubias (2016) 1 Cal.5th 838, 890.)
We conclude that there was substantial evidence of the use of force likely to produce great bodily injury. D.C. testified that Caldwell punched him in the face, after which he fell to the ground. Contrary to Caldwell's suggestion otherwise, the jury could reasonably infer from this testimony that the punching caused D.C. to fall. D.C. also testified that Caldwell then kicked him in the face, causing his glasses to fall off. Punching and kicking someone in the head, "an obviously vulnerable area," with sufficient force to make the person fall to the ground and knock off his or her glasses is a use of force likely to produce great bodily injury. (People v. Saez (2015) 237 Cal.App.4th 1177, 1189 [observing it was "significant" that victim sustained head injuries in concluding that substantial evidence supported jury's finding of great bodily injury]; People v. Horton (1963) 213 Cal.App.2d 185, 186, 188 ["kicking a man in the face and head" constitutes assault by means of force likely to produce great bodily injury].)
Caldwell argues that there was insufficient evidence he used force likely to produce great bodily injury because D.C. did not testify to being injured or requiring medical treatment. Citing People v. Wells (1971) 14 Cal.App.3d 348, he contends that "[b]ecause force was actually used, the nature and extent of the injury is the controlling factor in determining whether the assault was by means of force likely to cause great bodily injury." Wells observed that "the nature and extent of the injury is a relevant and often controlling factor in determining whether the force used was of felonious character." (Id. at p. 358.) That factor is not controlling here, however, given the circumstances. Caldwell's punching and kicking D.C. in the face could have easily caused serious injuries, and we agree with the Attorney General that the fact D.C. "may have fortuitously escaped" harm "does not lessen [Caldwell's] liability." (See People v. Golde, supra, 163 Cal.App.4th at p. 123; Armstrong, supra, 8 Cal.App.4th at pp. 1065-1066.)
2. Any error in the denial of Caldwell's section 995 motion was necessarily harmless.
Caldwell separately contends that the evidence presented at the preliminary hearing did not establish probable cause to believe that he had committed assault by means of force likely to produce great bodily injury. He fails to demonstrate the requisite prejudice, however, and we therefore reject this claim.
The People initially charged Caldwell by complaint with the robbery count and a misdemeanor count of battery of J.B. After the preliminary hearing, at which D.C. gave testimony consistent with his testimony at trial, Caldwell was held to answer on both charges. The People then filed an information charging Caldwell with the robbery count and two counts of assault by means of force likely to produce great bodily injury, one based on the assault of D.C. and one based on the assault of J.B. About a month later, soon before trial began, the trial court denied Caldwell's oral motion to dismiss both assault counts under section 995.
Shortly before the close of the People's case, the trial court granted Caldwell's motion under section 1118.1 to dismiss the count involving J.B.
Under section 739, a district attorney may charge a defendant by information "with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed." When an information "charges the commission of an offense not named in the commitment order," it "will not be upheld unless (1) the evidence before the magistrate shows that such offense was committed [citation], and (2) that the offense 'arose out of the transaction which was the basis for the commitment' on a related offense." (Jones v. Superior Court (1971) 4 Cal.3d 660, 664-665.)
Section 995 allows a motion to set aside an information where the defendant was "committed without reasonable or probable cause." (§ 995, subd. (a)(2)(B).) Although a defendant may file a pretrial writ of prohibition to challenge the denial of a section 995 motion (see §§ 999a, 1510), such a ruling will be reversed in a direct appeal from the conviction only if the defendant can demonstrate that the error was prejudicial. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 140.) If sufficient evidence is presented at trial to sustain a conviction, any error in holding the defendant to answer on that charge despite a lack of probable cause is harmless. (Ibid.; see also People v. Saez, supra, 237 Cal.App.4th at p. 1187, fn. 9.) Thus, our conclusion that sufficient evidence supports the assault conviction renders harmless any error in the denial of Caldwell's section 995 motion to dismiss that count.
B. The Prosecutor Did Not Commit Misconduct in Closing Argument.
Caldwell also claims that the prosecutor committed misconduct in closing argument by (1) committing Griffin error by indirectly referring to Caldwell's failure to testify and (2) improperly shifting the burden of proof. We disagree.
1. Additional facts.
Caldwell challenges four sets of the prosecutor's comments, two made during the initial closing argument and two made during rebuttal argument. First, referring to Caldwell's presence in the medical center parking lot, the prosecutor argued,
Why was he there? What other reasonable explanation is there for him being in that parking lot? You have to look at his actions. He's sitting in a car with the seat leaned all the way back and a jacket draped over his body, including his face. He's hiding. He's hiding from the police. That's the only reasonable explanation [why] he would be positioned in a car that way.
. . .
. . . [T]here is no evidence of the defendant being anywhere else. The only evidence you have is that he was at that Buffalo Wild Wings. You don't have any evidence of him shopping at the mall somewhere at this time. You don't have any evidence of him going into Northbay Medical Center at this time. The only evidence you have is him at that Buffalo Wild Wings where three witnesses saw him, and in that Northbay parking lot where the two officers found him.Later during the initial argument, the prosecutor stated,
What Dr. Shomer also couldn't explain is why was the phone found in the defendant's car? He also can't explain why the defendant was in that Northbay parking lot that night. He can't explain why the defendant was sweating. He can't explain why the defendant matched the robber as seen on the video. He can't explain why the defendant matched the description that the witnesses initially gave to the police. That's because the defendant is guilty. When you add up all of those reasons, you only come to that conclusion.Caldwell's trial counsel did not object to either set of comments.
On rebuttal, addressing the defense's argument that the police could have obtained other surveillance footage from the mall or collected fingerprints from Caldwell's car or D.C.'s cell phone, the prosecutor argued,
If the police had done a through z, [Caldwell's trial counsel] would be asking, well, why didn't they do No. 1. It goes on and on and on, because it's a distraction from the evidence that you have before you, because what [Caldwell's trial counsel] can't explain is why was the cellphone found in his client's car? Why was it in the defendant's car when [Caldwell] was sitting right there next to it? [¶] What he can't explain or provide a reasonable explanation of is why three separate witnesses ID'd his client.
Caldwell's trial counsel objected, stating, "We . . . don't have a burden here, and this is improper. It's burden shifting, and it's an attack on me from the start." The trial court overruled the objection but told the jury, "Ladies and gentlemen, you heard the evidence. It's up to you to decide what the facts are, but what the lawyers say is just argument." The prosecutor then concluded,
What else [Caldwell's trial counsel] can't explain is why the defendant matches the description that the witnesses initially gave to the
police. What's his reasonable explanation for that? He can't explain why the defendant matches the robber, as seen on the video.
When you go back there, you're going to have the pictures. You're going to have the video. You have the [911] call. Look at it, and you will see that [the] defendant is the same robber on the video.
What he can't explain is why the defendant was found no less than 45 minutes later, in the same area just a short distance away from where this robbery occurred, at a medical center that is closed. He has no reason to be there. They have no reasonable explanation for that.
They have no reasonable explanation of why he's sitting in the front seat of his car with the seat leaned all the way back and a jacket draped over himself trying to hide from the police. [¶] They have no reasonable explanation of why he is profusely sweating, and it's cold outside.
And finally, they have no reasonable explanation of why there is no evidence that he was anywhere else that night. That's because when you look at all the evidence that is before you, there is only one reasonable logical conclusion that this defendant, he walked up to [D.C.]. He punched him in the face. He kicked him to the ground, and he ran off with his cellphone, and because of that, I ask that you find him guilty.
After the prosecutor concluded and the jury left the courtroom, Caldwell's trial counsel reiterated his objection that the prosecutor's "comments in his rebuttal" constituted misconduct because they were an attempt to shift the burden of proof to the defense.
2. General legal standards.
A prosecutor's "improper comments" violate the federal Constitution if they " ' "so infect[] the trial with unfairness as to make the resulting conviction a denial of due process." ' [Citations.] ' "But 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." ' " ' " (People v. Cunningham (2001) 25 Cal.4th 926, 1000.) In a claim involving comments to 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.' " (Id. at p. 1001.) In resolving this question, " 'we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' " (People v. Centeno (2014) 60 Cal.4th 659, 667 (Centeno).)
" '[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements.' " (People v. Hill (1998) 17 Cal.4th 800, 829-830.) Specifically, it is improper "for the prosecutor to suggest that a 'reasonable' account of the evidence satisfies the prosecutor's burden of proof" or "to state that 'a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.' " (Centeno, supra, 60 Cal.4th at pp. 672-673.) In addition, under Griffin, "it is error for a prosecutor to state that certain evidence is uncontradicted or unrefuted when that evidence could not be contradicted or refuted by anyone other than the defendant testifying on his or her own behalf" or "to refer to the absence of evidence that only the defendant's testimony could provide." (People v. Hughes (2002) 27 Cal.4th 287, 371-372.)
3. The prosecutor did not commit Griffin error or improperly shift the burden of proof.
Initially, the Attorney General contends that Caldwell forfeited his claim of Griffin error because he did not object on that basis and his claim of improper burden shifting to the extent the claim encompasses remarks the prosecutor made in the initial closing argument, to which Caldwell also did not object. Caldwell responds that he fairly raised the Griffin issue through his burden-shifting objection. We need not resolve the parties' dispute about whether Caldwell preserved his claims because they fail on the merits.
Caldwell claims that the prosecutor "commented inferentially on [Caldwell's] failure to testify" because "[o]nly [Caldwell] could testify as to why he was in the parking lot, why he was sweating, if he was somewhere else, and why the phone was in his car." The Griffin rule does not apply, however, "to comments on the state of the evidence, or on the failure of the defense to introduce material evidence or to call logical witnesses." (People v. Medina (1995) 11 Cal.4th 694, 755.) In Medina, the prosecutor repeatedly referred to defense counsel's failure to explain why witnesses saw the defendant with a handgun around the times of various robberies. (Id. at pp. 755-756.) Our state Supreme Court held that such comments did not implicitly refer to the defendant's silence and could "only be seen as a fair comment on the state of the evidence, comment falling outside the purview of Griffin." (Id. at p. 756.) Similarly, here "the prosecutor's comments were directed to the general failure of the defense to provide an innocent explanation" of various facts supporting the prosecution case. (Ibid.; see also People v. Young (2005) 34 Cal.4th 1149, 1195-1196 [no Griffin error or improper burden shifting where prosecutor highlighted lack of " 'reasonable interpretation of the evidence that leads to the defendant's innocence' "].) We tend to agree with the Attorney General that such an explanation could have been supported with evidence other than Caldwell's own testimony, such as footage from the security cameras. As a result, we are unconvinced that there was any Griffin error.
Although most of his discussion addresses Griffin error, Caldwell also claims in passing that the prosecutor's comments improperly shifted the burden of proof to the defense because they "made a direct correlation between the defense failure to [provide] reasonable explanations and proof of guilt." Caldwell does not specifically identify which comments he contends made such a correlation, but it appears he is referring to the prosecutor's statement that Dr. Shomer could not explain away various negative facts "because the defendant is guilty. When you add up all of those reasons, you only come to that conclusion."
In making this claim, Caldwell primarily relies on Centeno, which held that a prosecutor's "repeated[] suggest[ions] that the jury could find [the] defendant guilty based on a 'reasonable' account of the evidence" by the prosecution "clearly diluted the People's burden" and constituted misconduct. (Centeno, supra, 60 Cal.4th at p. 673, italics omitted.) Centeno also observed that "[t]he prosecution cannot suggest that deficiencies in the defense case can make up for shortcomings in its own." (Ibid.) Here, however, the prosecutor's comments cannot be reasonably interpreted as suggesting that the People had carried their burden merely because they provided a reasonable explanation of the evidence under which Caldwell was guilty or because the defense had not provided any explanation at all. Instead, the prosecutor listed the facts proving Caldwell's guilt beyond a reasonable doubt and then observed that the defense had not presented any evidence to suggest an innocent explanation for those facts. In doing so, he did not engage in improper burden shifting. (See People v. Bradford (1997) 15 Cal.4th 1229, 1340 ["A distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence, or . . . prove his or her innocence"].)
Even if the prosecutor's comments had been improper, any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; see People v. Hovey (1988) 44 Cal.3d 543, 572 [applying Chapman to claim of Griffin error].) Most indirect Griffin errors, as opposed to explicit mentions of a defendant's silence, are harmless, and our state Supreme Court has recognized that " 'in order for Griffin error to be prejudicial, the improper comment or instruction must either "serve to fill an evidentiary gap in the prosecution's case," or "at least touch a live nerve in the defense . . . ." ' " (People v. Denard (2015) 242 Cal.App.4th 1012, 1022, quoting People v. Vargas (1973) 9 Cal.3d 470, 481.) Here, there was no such infirmity in the prosecution's case. Three witnesses identified Caldwell at the scene, security footage captured portions of their encounter with him, and he was soon found near the restaurant with D.C.'s cell phone.
Moreover, the trial court instructed the jury under CALCRIM No. 355 that a defendant's silence is not to be considered for any purpose and under CALCRIM Nos. 103 and 220 on the People's burden of proving guilt beyond a reasonable doubt. After Caldwell objected to some of the prosecutor's comments, the court also instructed the jury that counsel's arguments did not constitute evidence. These instructions, which we presume the jury followed, mitigated any erroneous impression the prosecutor's comments could have given about either Caldwell's silence or the People's burden of proof. (See People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8 [proper to assume "that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade"]; People v. Caldwell (2013) 212 Cal.App.4th 1262, 1274 [finding any Griffin error harmless based on instructions to jury].)
III.
DISPOSITION
The judgment is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Dondero, J.