Opinion
B226624
09-07-2011
THE PEOPLE, Plaintiff and Respondent, v. KENDAL MARCUS CLARK, Defendant and Appellant.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Margaret E. Maxwell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA111364)
APPEAL from a judgment of the Superior Court of Los Angeles County. Kelvin D. Filer, Judge. Affirmed in part, vacated in part and remanded.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Margaret E. Maxwell, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Kendal Marcus Clark of robbery and making a criminal threat, with findings on both counts that he personally used a firearm during the crimes. (Pen. Code, §§ 211, 422, 12022.53, subd. (b).) In a bifurcated trial phase, the trial court found that Clark had suffered a prior conviction with a prison term. (§ 667.5, subd. (b).) The trial court sentenced Clark to an aggregate term of 16 years in state prison. We find no reversible error in Clark's convictions, but find that certain aspects of his sentence necessitate a new sentencing hearing.
All section references are to the Penal Code.
FACTS
During daylight hours on March 12, 2010, Clark stopped his green Suburban near the intersection of 92nd Street and Grand Avenue. He got out of the vehicle, walked a short way up 92nd Street, pulled out a handgun, pointed it at William Clifford, and demanded Clifford's jewelry. While accosting Clifford, Clark stated at least twice, "I'll gun you down." Clifford handed over a 24-inch chain and diamond earrings. Clark then returned to his Suburban, and drove away.
Jerome Johnson, a City of Los Angeles sanitation worker, was stopped in his truck near 92nd and Grand, and saw Clark rob Clifford. Johnson followed Clark's Suburban, wrote down its license plate number, and then returned to the area near the crime where he met up with Clifford. Meanwhile, Clifford called 911. When police responded to the scene, Clifford and Johnson provided descriptions of the assailant. Johnson told police that the robber's vehicle had distinctive scratches and a logo sticker on the rear window.
Los Angeles Police Department (LAPD) Detective Sonny Patsenhann prepared a "six-pack" array of photographs containing Clark's photograph from the Department of Motor Vehicles (DMV). Clifford and Johnson both identified Clark's photograph as the robber. Clifford had no doubt that Clark was the robber and Johnson recognized Clark as the robber "right off the bat." Detective Patsenhann entered a warrant for Clark into a database.
On March 17, 2010, California Highway Patrol Officer Steven Geraty responded to a traffic accident involving Clark's Suburban. Clark was driving. His Suburban had distinctive scratches and a logo sticker on the rear window. Officer Geraty detained Clark based on the warrant issued by LAPD. At trial, the People introduced photographs of Clark's Suburban which showed it matched the description provided by eyewitness Johnson on the day of the robbery. Johnson identified the vehicle as the one used by the robber.
The People filed an information charging Clark with robbery and making a criminal threat. Both counts further alleged that he personally used a firearm during the crimes. (§§ 211, 422, 12022.53, subd. (b).) The information also alleged that Clark had suffered a prior conviction for which he served a prison term. (§ 667.5, subd. (b).) The charges were tried to a jury, at which time the prosecution presented evidence establishing the facts summarized above. Clifford and Johnson both identified Clark at trial. Clark did not present any defense evidence. Instead, his trial counsel argued that the identifications by Clifford and Johnson were not reliable.
The jury returned verdicts finding Clark guilty as charged. Clark waived trial on the prior conviction allegation, and admitted the truth of the allegation. The trial court sentenced Clark to 16 years in state prison as follows: count 1 (robbery) the upper term of 5 years, plus 10 years for the firearm enhancement; count 2 (criminal threat) the upper term of 3 years, plus 10 years for the firearm enhancement. Count 2 was ordered to run concurrent. Clark was sentenced to an additional 1-year term for his prior conviction.
Clark filed a timely notice of appeal.
DISCUSSION
I. The Reasonable Doubt Issue
Clark contends his convictions must be reversed because the prosecutor's use of a PowerPoint slide presentation during her closing argument misstated the burden of proof. We agree with Clark that the visual aid which was used at his trial should not have been used, but we do not agree that reversal is required.
"Prosecutorial misconduct" is the label given to a trial tactic used by a prosecutor that either reprehensibly or deceptively persuades a jury. A defendant need not show bad faith on the part of the prosecutor to establish misconduct because a defendant is injured by an improper trial tactic, regardless of whether it occurred inadvertently or through an intentional design. (People v. Crew (2003) 31 Cal.4th 822, 839; People v. Hill (1998) 17 Cal.4th 800, 822-823.) A misstatement of the law regarding reasonable doubt may constitute misconduct. (People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1269 (Katzenberger).)But more than a showing of the occurrence of an improper trial tactic is required to warrant reversal upon a misconduct claim; an improper trial tactic warrants reversal only when a reviewing court finds that the prosecutor's act or words so infected the trial with unfairness as to make the defendant's conviction a denial of due process. (People v. Cash (2002) 28 Cal.4th 703, 733.)
During the prosecutor's closing argument, she discussed reasonable doubt with this language: "So reasonable doubt, this is my burden I want to talk to you about this. As I told you in jury selection, reasonable doubt is not beyond all possible doubt. It's absolutely not what it is. It's beyond a reasonable doubt. . . . I'm going to give you an example, something unreasonable. The defendant has this identical twin . . . and there's no evidence of this, but let's say it's possible he has a twin. So based upon that, even though I heard no evidence on that, I'm going to come back not guilty. That would be unreasonable because it's based on something you made up, not something that happened in the courtroom. [¶] Same thing, he's been abducted by aliens, they make him do something. Again, not reasonable. It has to be based on evidence you hear in court. [Referring to the PowerPoint slide projection] So if the cylinder is representing doubt, this arrow represents evidence presented by the People. It doesn't have to fill up the cylinder, it just has to make it [past] reasonable doubt. Everything in life is subject to some doubt."
The "cylinder" referenced by the prosecutor was a projected PowerPoint slide of a line drawing of a geometric cylinder figure, with the title across the top of the slide which read: "CONCEPT OF REASONABLE DOUBT." We have reviewed the PowerPoint slide. To the left of the cylinder are boxed words reading: "Proof Beyond Reasonable Doubt Is Reached; When juror has an abiding conviction the charge is true." A thin-lined arrow leading from the box to the cylinder points the viewer to a horizontal line through the cylinder roughly three-quarters of the way up from the bottom of the cylinder. Above the line are the words "Still May Have Possible or Imaginary Doubt," and below the line are the words "REASONABLE DOUBT." A larger, broader arrow inside the cylinder points from the bottom of the cylinder to the horizontal line. Inside this broader arrow are the words "Evidence Presented by People."
The PowerPoint presentation is properly before us on Clark's motion to augment the record.
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As the prosecutor was beginning to refer to the PowerPoint slide, defense counsel asked to speak to the trial court at sidebar. At the bench, defense counsel objected that the prosecutor's slide wrongly described the burden of proof by implying that reasonable doubt could be based on "some type of percentage." The trial court overruled the objection, but did give the following admonishment to the jury before the prosecutor resumed her argument: "I . . . remind you that the attorneys' argument is not evidence and visual aids [are] not evidence. It's what the attorneys use in assisting their argument to you."
After the court's admonishment, the prosecutor continued her argument: "I think I was telling you when we establish [proof beyond a] reasonable doubt that just means that we present enough evidence that gets pas[t] reasonable doubt; it doesn't mean that all doubt is removed from possibility. So everything in life is subject to some imaginary or possible doubt. So we just need you to have an abiding conviction the charge is true. That's exactly what's on the jury instruction, it's going to be what's back there with you. You still may have possible or imaginary doubt."
We agree with Clark that the PowerPoint slide could have been viewed by a reasonable juror in a way which misstated the law of reasonable doubt. In other words, we accept Clark's position that the PowerPoint slide may have been viewed by a juror to suggest that reasonable doubt is a quantifiable concept, and that a figure of around 75 percent free of doubt — the evidence "fill line" marked on the cylinder — was what the jurors were to have in mind in deciding whether they harbored reasonable doubt of Clark's guilt. We find such a quantitative suggestion of reasonable doubt to be improper.
Katzenberger, supra, 178 Cal.App.4th at page 1269, is instructive. In Katzenberger, a prosecutor used a PowerPoint presentation to explain reasonable doubt. The presentation consisted of an eight-piece puzzle of which six pieces came on the screen sequentially. As the six pieces were being fitted together, it became "immediately and easily" apparent that puzzle was going to depict a picture of the Statue of Liberty. The Third District Court of Appeal ruled that the use of such an "iconic" image misstated the law of reasonable doubt because, long before the six pieces of the eight-piece puzzle came together, jurors would know that the puzzle was going to depict the Statue of Liberty. As the court succinctly concluded: "The prosecutor's use of an easily recognizable iconic image along with the suggestion of a quantitative measure of reasonable doubt combined to convey an impression of a lesser standard of proof than the constitutionally required standard of proof beyond a reasonable doubt. The prosecutor committed misconduct." (Katzenberger, at p. 1268.)
We do not have an "iconic" image involved in Clark's current case. However, we accept the proposition that a reasonable juror could have understood the PowerPoint slide depicted reasonable doubt as having a quantitative element — in the form of a geometric figure — and that it implied reasonable doubt may be measured as roughly 75 percent free of doubt. As the Katzenberger court's survey of published cases showed, reasonable doubt should not be explained as a quantitatively measured mindset. (Katzenberger, supra, 178 Cal.App.4th at pp. 1266-1268.) The Katzenberger court further cautioned that "perils . . . attend a prosecutor's attempt to reduce the concept of guilt beyond a reasonable doubt to a mere line on a graph or chart." (People v. Medina (1995) 11 Cal.4th 694, 745.) We add our voice to this chorus and use the occasion of this opinion to remind prosecutors, defense counsel, and trial courts alike that any suggestion, direct or implied, that reasonable doubt may be quantitatively measured, whether relayed by words or visual aid, must be avoided. Depending on the nature of the prosecutor's argument, a trial court may have to fashion a specific instruction — not merely a repetition of standard instructions — to undo any improper suggestions.
Having accepted that the prosecutor's use of the PowerPoint reasonable doubt slide falls within the ambit of "prosecutorial misconduct" even though it plainly was not intended to be misleading, the next step is to review for prejudice. We see no prejudice. First, the trial court correctly instructed the jury on reasonable doubt using CALCRIM No. 220, and we presume the jurors followed the court's instructions. (Katzenberger, supra, 178 Cal.App.4th at pp. 1268-1269.) Further, the example of reasonable doubt came from the prosecutor, not the trial court (id. at p. 1268 [we presume jurors understand lawyers' arguments as advocacy that carries less weight than do a trial court's instructions on the law].) Also, the court, in the middle of the "fill the cylinder" slide presentation, reminded the jurors that visual aids used by the attorneys were merely aids to assist argument, and not evidence. Next, apart from the PowerPoint slide, the prosecutor's discussion of reasonable doubt was not objectionable. The prosecutor did little more than impart the concept that beyond a reasonable doubt does not mean the People are required to dispel all doubts, even unreasonable doubts.
Finally, independent of the prosecutor's argument, the evidence proving Clark's guilt was strong. Victim Clifford and eyewitness Johnson both made pretrial photo identifications of Clark, and identified Clark in court. None of the identifications was equivocal. There is no true dispute that the vehicle used in the robbery, with its distinctive scratches, window logo, and license plate number, belonged to Clark. Clark did not present any defense evidence.
The jury's questions during its deliberations — upon which Clark places strong reliance — do not in our view show they considered the case to be weak. On the contrary, this is what is shown by the record. On Friday, July 16, 2010, the trial court swore the bailiff to take charge of the jury at 11:48 a.m., then promptly recessed trial for lunch. The jury began deliberating at 1:45 p.m. Less than 45 minutes later, at 2:24 p.m., the jury asked for readback of Johnson's testimony, and for the date of Clark's DMV photograph used in the six-pack. The court responded by asking whether the jury could narrow the request as to Johnson, and by advising the jury that there was no evidence about the date of Clark's DMV photograph. At 3:00 p.m., the jury asked for a readback of "all" of Johnson's testimony and "all" of Clifford's testimony. The court replied that the testimony would be available for a readback on Monday. At 3:10 p.m., the jury indicated that they could not reach a unanimous decision without the readback requested and asked if they could recess for the weekend. The court obliged and excused the jurors for the weekend. On Monday, July 19, 2010, the court reporter read the requested testimony starting at 10:00 a.m. At 11:17 a.m., the jury resumed deliberations. Less than 15 minutes later , the jurors advised the court that they had reached a verdict. We believe the record shows the jurors wanted to be careful and did not want to rush to a verdict on Friday afternoon. It does not show that any juror had difficulty coming to a decision on Clark's guilt. Indeed, the jury found Clark guilty after roughly one hour of deliberations. The jury found Clark guilty less than 15 minutes after it heard the readback of testimony.
We see no possibility under any standard of review that the result of Clark's trial would have been any different had the prosecutor not used the PowerPoint slide.
II. The Section 654 Issue
Clark contends, the People agree, and we find that the three-year upper term imposed on count 2 (making a criminal threat) must be stayed pursuant to section 654. We agree with the parties that the conduct involved in the criminal threat offense alleged in count 2 is not divisible from the robbery alleged in count 1. Accordingly, the term imposed on count 2 should have been imposed and stayed, not imposed and ordered to run concurrent to the term on count 1. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) This issue may be addressed by issuing a new abstract of judgment reflecting this modification.
III. The Firearm Enhancement Issue
Clark contends the concurrent 10-year firearm enhancement imposed on count 2 under section 12022.53, subdivision (b), must be stricken because the crime of making a criminal threat (§ 422) is not a "qualifying" felony under that particular firearm enhancement section. (See § 12022.53, subd. (a).) The People agree that section 422 is not a qualifying felony because it is not listed in section 12022.53, subdivision (a). They argue, however, that we may substitute a different 10-year firearm enhancement — the upper term of the triad of firearm enhancement punishments under section 12022.5, subdivision (a). The People contend that we may reasonably infer that, if the jury returned a finding under section 12022.5, subdivision (a), then the trial court would have imposed the upper term under section 12022.5, subdivision (a), because it imposed the three-year upper term on the section 422 crime itself.
We agree with the People's position that we have the authority on appeal to substitute a punishment prescribed under one firearm enhancement in place of a punishment under another firearm enhancement when the record shows that the latter enhancement does not apply to a defendant by the latter enhancement's own terms (see, e.g., People v. Strickland (1974) 11 Cal.3d 946, 960-961). However this rule of simple substitution does not fully resolve the issue in Clark's current case. The theory underlying the rule cited by the People is this: where a "greater" firearm enhancement is alleged, and it encompasses all of the elements of a "lesser" firearm enhancement, a defendant is on notice that he or she is exposed to the punishment prescribed by the lesser firearm enhancement. Where a jury finds that the prosecution proved the greater enhancement, but the greater enhancement is subsequently determined inapplicable under the greater enhancement's statutory scheme, a defendant may be properly punished under the lesser, applicable enhancement. (Ibid.; see also People v. Dixon (2007) 153 Cal.App.4th 985, 1001-1002; People v. Allen (1985) 165 Cal.App.3d 616, 626-627.)
We believe those authorities allow a reviewing court to substitute section 12022.5, subdivision (a), for section 12022.53, subdivision (b). However, the problem with applying this rule in Clark's case is that the published cases do not deal with an appellate court reducing a mandatory term, as is involved under section 12022.53, subdivision (b), to the upper term of a discretionary triad of punishments, as is involved under section 12022.5, subdivision (a). In other words, accepting that a firearm enhancement punishment prescribed by section 12022.5, subdivision (a), may properly be imposed in Clark's current case as a substitute for the punishment prescribed by section 12022.53, subdivision (b), we will not supplant the trial court's discretion by presuming to know that the trial court would have imposed the upper term. The problem here is not the defendant's right to notice of a possible punishment, but rather, a trial court's right to make a discretionary choice from between three prescribed punishments.
We find it appropriate to remand for a new sentencing hearing at which the trial court can determine the appropriate term under section 12022.5, subdivision (a). As the People recognize, execution of the term imposed for the firearm enhancement under section 12022.5, subdivision (a), must then be stayed in any event, as must the term on the criminal threat crime itself, for the reasons explained in part II of this opinion, ante. In summary, we strike the 10-year firearm enhancement punishment under section 12022.53, subdivision (b), attached to count 2 for making a criminal threat in violation of section 422, and we remand this case to the trial court select instead from the triad of punishments under section 12022.5, subdivision (a).
DISPOSITION
Clark's convictions are affirmed. His 16-year sentence is vacated, and the case is remanded to the trial court to resentence Clark in accord with this opinion, and to issue a new abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
BIGELOW, P. J. We concur:
RUBIN, J.
GRIMES, J.