Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County, Bernard J. Schwartz, Judge, Super. Ct. No. SWF010079.
McINTYRE, Acting P. J.
A jury convicted Andrew Jackson Dicharry of making a criminal threat, false imprisonment, possessing a firearm while under the influence of a controlled substance, misdemeanor false imprisonment and misdemeanor resisting arrest. He appeals, contending: (1) the prosecutor committed prejudicial misconduct; (2) the trial court erroneously admitted certain evidence; and (3) the jury rendered inconsistent verdicts. We find no prejudicial error warranting reversal of the convictions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
This case involved three separate incidents between Dicharry and his live-in girlfriend, Renata Izzi. In October 2004, Dicharry threatened to kill Izzi with a gun. (All further dates are in 2004.) Izzi later gave a recording of the incident to the police. On November 5, Dicharry tied Izzi's wrists, placed her in a bathtub and poured water on her face while holding a gun.
On November 12, while under the influence of drugs, Dicharry used a gun to hold Izzi against her will, because he suspected that Izzi had another boyfriend in the house. After Dicharry's uncle called police, Dicharry resisted arrest and required five police officers to subdue him. Police arrested Dicharry and took him to the hospital, where he escaped and attempted to climb over a barbed-wire fence until tackled by an officer, resulting in injuries to Dicharry's forearm, triceps, rib and stomach areas. The police booked Dicharry after the hospital treated his injuries and calmed him with a narcotic.
An information charged Dicharry with making a criminal threat (count 1) and false imprisonment by violence or menace (count 2) for the November 5 incident and further alleged that he committed the crimes while using a firearm. It also alleged three counts for the November 12 incident: false imprisonment by violence or menace while using a firearm (count 3), resisting a police officer (count 4) and possessing a firearm while under the influence of a controlled substance (count 5). A jury found Dicharry not guilty of the three firearm enhancement allegations, guilty on counts 1, 2 and 5 as charged, and guilty of the lesser included offenses of misdemeanor false imprisonment for the November 12 incident (count 3) and misdemeanor resisting arrest (count 4). The trial court suspended imposition of sentence and placed Dicharry on probation for five years on the condition that he serve 365 days in jail. Dicharry appeals.
DISCUSSION
I. Prosecutorial Misconduct
Dicharry presents two instances of what he claims to be acts of prosecutorial misconduct during closing argument – misstating the applicable law regarding the presumption of innocence and misstating the evidence of his injuries. Under California law, a prosecutor who uses deceptive or reprehensible methods to persuade a jury has committed misconduct, even if such action does not render the trial fundamentally unfair. (People v. Frye (1998) 18 Cal.4th 894, 969.) "To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]" (Id. at p. 970.) Moreover, we presume that a jury will follow an admonition to disregard improper evidence or comments; thus, it is rare when misconduct cannot be remedied by the court's admonitions. (People v. Pitts (1990) 223 Cal.App.3d 606, 692.) In accordance with these principles, we conclude that the claimed instances of misconduct were not prejudicial.
The prosecutor told the jury that every defendant in a criminal trial is entitled to a presumption of innocence. "But, as you heard the evidence in this case, and now that you've heard all of the evidence, and at the conclusion of my argument, you would have heard all of the argument, the presumption will be gone. You have heard all the evidence as you go into that jury deliberation room. He is not entitled to the presumption anymore."
Defense counsel immediately objected and the court admonished the jury as follows: "Ladies and gentlemen, I have told you, instructed you what the law is, what the presumption of innocence is in every criminal trial. It is only once you get to the deliberation room, you start discussing the case, if you find otherwise, that presumption obviously no longer exists, you find Mr. Dicharry guilty. [¶] If you believe that he is not guilty, obviously, the presumption remains, and his presumption of innocence has not been overcome by the burden of proof, and the proof beyond a reasonable doubt. So I have given you the law and the instructions in the case. Remember, again, this is argument, and the attorneys' statements are not evidence. And if the law is given different than what I instruct, you must follow my instructions."
The prosecutor's argument was less than artful; however, if we assumed, without deciding, that the argument amounted to prosecutorial misconduct, Dicharry has not demonstrated a reasonable likelihood that the jury understood or applied the comments in an improper manner. The trial court immediately admonished the jury and later instructed it that Dicharry was presumed to be innocent until the contrary was proved and that the People had the burden of proving guilt beyond a reasonable doubt. (CALJIC No. 2.90) We presume the jury followed the court's admonition and instructions (People v. Boyette (2002) 29 Cal.4th 381, 436) and there is nothing in the record to suggest it did not.
Second, Dicharry complains that the prosecutor misstated the evidence when she told the jury there were no photographs of his broken ribs because the prosecutor knew such photographs existed, but had been excluded during in limine motions. The record does not support this contention.
Before trial, defense counsel told the court that he wanted to show the jury injuries that Dicharry had suffered, including photographs of Dicharry's wrists, forearms, chin, elbow, back and buttocks. The trial court indicated that the photographs were admissible if they could be authenticated. Outside the presence of the jury, defense counsel showed a police officer the photographs, but the officer was only able to authenticate one photograph of Dicharry's back. Thereafter, the officer testified that the photograph depicted bruising to Dicharry's rib area and the trial court admitted the photograph into evidence. The officer also testified that Dicharry suffered injuries to his stomach, triceps, ribs and forearm.
During closing argument, the prosecutor asserted that no evidence supported defense counsel's opening statement that the police had beaten Dicharry and that Dicharry had suffered broken ribs, noting no photographs, medical records or X-rays depicted these injuries. Dicharry, however, did not object to the prosecutor's comments and thus waived the issue on appeal. (People v. Ayala (2000) 23 Cal.4th 225, 284.)
Even if we were to reach the merits of Dicharry's claim, the comments were a fair statement of the evidence because the trial court admitted the only photograph of Dicharry's back into evidence and Dicharry has not cited any evidence in the record to support his contention that he suffered broken ribs. (People v. Powell (1980) 101 Cal.App.3d 513, 520-521 [prosecutor's comments are not misconduct if they rebut the embellishments presented by defense counsel].) Additionally, the trial court instructed the jury that statements made by the attorneys are not evidence (CALJIC No. 1.02) and we presume that the jury relied on its own recollection of the evidence. (See CALJIC No. 1.05 [notes taken by jurors may aid memory but do not take precedence over recollection].)
II. Admission of Tape Recording
1. Facts
Izzi was unavailable to testify at trial and the People read the transcript of her preliminary hearing testimony to the jury. Izzi testified that during the October incident Dicharry held a gun to her head and threatened to kill her. She later provided a police officer with a recording of the incident. Deputy Sheriff Emanuel Romero testified that he discussed the October incident with Izzi and she related that Dicharry had held a gun to her head, told her she was "going to die tonight" and that they would play Russian roulette.
Deputy Romero stated that Izzi gave another officer a digital recording of the incident and that he obtained the recording from that officer. He also spoke to Izzi and Dicharry and recognized their voices when he listened to Izzi's recording. Deputy Romero identified an audiotape of the incident and a transcript of the audiotape and stated they were "one and the same." Over Dicharry's hearsay and lack of foundation objections, the trial court allowed the jury to hear the audiotape and gave them copies of the transcript, instructing them that the audiotape, not the transcript, was the evidence in the case. The names Andrew, Andy and Renata were used in the audiotape recording, with Andrew threatening to "blow [Renata's] brains out" and play Russian roulette.
When the prosecution offered the audiotape and transcript into evidence, Dicharry again objected, arguing there was no foundation laid as to how the audiotape was made and there was no way of knowing whether the recording had been manipulated or changed because the People never produced the digital recording. After the prosecutor explained that Deputy Romero heard the digital recording and a transcript could only be made from a tape, the trial court admitted the evidence and noted that Dicharry had not cross-examined the deputy regarding whether the recording had been tampered with.
2. Analysis
Dicharry contends the trial court erred when it allowed a jury to hear the audiotape recording, instead of the original digital recording, because the chain of evidence had not been properly established or a proper foundation laid for the introduction of this evidence. We review a trial court's determination on the admissibility of evidence for an abuse of discretion. (Evid. Code, § 310.)
Duplicates are "secondary evidence" of a writing's content (People v. Bizieff (1991) 226 Cal.App.3d 1689, 1697 [construing former "best evidence rule"] and tape recordings are considered to be a "writing" subject to the authentication requirements of Evidence Code section 1400 et seq. (People v. Patton (1976) 63 Cal.App.3d 211, 220.) Any process that accurately reproduces an original creates a duplicate and a duplicate is generally admissible to the same extent as the original. (Evid. Code, § 260.)
Here, although Deputy Romero listened to Izzi's recording and the audiotape and also read the transcript of the audiotape, the prosecution presented no evidence as to when, where, how or by whom the audiotape was made. Without this evidence, the trial court abused its discretion when it admitted the audiotape and transcript. (Evid. Code, § 1413; Historical and Statutory Notes, 29B, Pt. 4 West's Ann. Evid. Code, (2007 supp.) foll. § 1520, p. 95 [proponent of secondary evidence must not only authenticate the original writing, but also establish that the proffered evidence is secondary evidence of the original].)
Dicharry, however, has failed to establish that the error prejudiced him and the record supports a conclusion that admission of the audiotape and transcript did not constitute reversible error. (Cal. Const., Art. VI, § 13.) Notably, the jury heard Izzi testify that Dicharry held a gun to her head and threatened to kill her. Deputy Romero also testified, without objection, that Izzi told him that Dicharry had held a gun to her head, that she would die and they would play Russian roulette. The audiotape and transcript of the audiotape simply replicated this testimony for the jury. Accordingly, Dicharry has not met his burden of proving the outcome of trial would have been different absent the admission of this evidence. (People v. Watson (1956) 46 Cal.2d 818, 836.)
III. Alleged Inconsistent Verdicts
Dicharry contends that the jury rendered inconsistent verdicts regarding the charges arising out of November 12 incident when it found him guilty of possessing a firearm while under the influence of a controlled substance and guilty of misdemeanor false imprisonment, but found the personal use of a firearm allegation connected to the false imprisonment charge not true. We disagree.
The trial court instructed the jury that to find Dicharry guilty of possessing a firearm while under the influence of a controlled substance, the jury had to find that he had a loaded, operable firearm under his immediate personal possession, meaning the "firearm must be near by and quickly and directly available to him." In contrast, the firearm enhancement connected to the false imprisonment count required the jury to find that Dicharry "personally used a firearm," meaning he "intentionally displayed a firearm in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it." Accordingly, the verdicts were not inconsistent because the crimes contained different elements. (People v. Allen (1974) 41 Cal.App.3d 821, 826 [verdicts are not invalid for inconsistency unless they are rendered upon charges that have identical elements].)
Additionally, there was conflicting evidence as to whether Dicharry personally used an operable gun to hold Izzi against her will on November 12. After the incident, Izzi testified that Dicharry placed the gun he had held inside a cardboard box and that she showed an officer its location. The police searched the box and recovered a loaded gun.
Although the police did not find anything else of interest in the box, after the police left, Izzi claimed that she found another gun in the box that was a non-operational training weapon and that this was the item that Dicharry had used. Accordingly, the jury could have found that Dicharry had an operable gun quickly and directly available to him in the box and it could have also believed Izzi's testimony that Dicharry had personally used the non-operational training weapon.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O'ROURKE, J., AARON, J.