Opinion
2d Crim. No. B202221
7-30-2008
THE PEOPLE, Plaintiff and Respondent, v. JAMES SCOTT LANE, Defendant and Appellant.
David A. Andreasen, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Robert S. Henry, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published
James Scott Lane appeals from a judgment, after trial by jury, following his conviction of grand theft. (Pen. Code, § 487, subd. (a).) The trial court found that the prior serious felony conviction and prior prison term allegations were true (§§ 667, subds. (d)(1) & (e)(1); 1192.7, subd. (c); 667.5, subd. (b)), and sentenced appellant to six years in prison, including a two-year midterm for grand theft, doubled under section 667, subdivisions (a)(1) and (e)(1), and a year for each prior prison term. Appellant contends that the courts admission of two prior felony convictions and prosecutorial misconduct require the reversal of his conviction. We affirm.
FACTUAL BACKGROUND
Prosecution Evidence
Jessica Villaros, Wade Cook and Guadalupe Gomez worked at Big Boys Toys store, in a shopping center. On March 29, 2007, in the morning, Cook moved three motorbikes, including a Viva, just outside the store. He chained them to a pillar with a metal cable and a metal lock. Cook left the store for a few minutes, shortly before 4:30 p.m. When he returned, appellant was sitting on the ground in front of the store, alone.
Around 4:30 p.m., on March 29, Villaros saw appellant pushing the Viva away from the store. She yelled and told him to bring it back. Appellant put the Vivas kickstand down and told her that his "friend bought it." He then "just left [it] there," walked away, and started running.
Upon hearing Villaros yell, Cook looked up and saw appellant pushing the Viva toward the street at a fast pace. He ran to retrieve it, and asked appellant for a receipt. Appellant told Cook he was taking the Viva to a trailer for his friend, who bought it. Cook did not see a trailer anywhere in the parking lot. Appellant continued to push the Viva until Cook grabbed it from him.
Appellant had a hatchet "in his hand when he was still with the [Viva]." Gomez saw part of the hatchets blade protruding from the end of appellants jacket sleeve. There was also a "straight cut" in the cable which had previously secured the Viva to the pillar outside the store.
Cook called the police. Appellant started running, continued toward the street, and crossed it. Gomez followed and found him next to the Stanley Morgan building. Santa Maria Police Department Officer Rusty Bryant located appellant sitting behind that building. Appellant had a hatchet between his legs when the officer found him.
Defense Evidence
Appellant testified at trial. He had worked for the owner of several motels, including the Stardust Motel, for several years. On March 29, 2007, he rode his bike to the Stardust Motel. On his way, he picked up a hatchet from a dumpster at Harbor Freight Tools. He left the hatchet at a fence "between the Stardust and the retaining wall." He visited his friend Gilliam at the Stardust. Gilliam wanted appellant to "build him a scooter." Appellant and Gilliam crossed the street together, to go to a Grocery Outlet.
While Gilliam was outside the Grocery Outlet, appellant walked to the front of Big Boys Toys, approximately 50 yards from the Grocery Outlet, and pushed a "little motorcycle off the sidewalk," toward Gilliam. Appellant saw a cable by the bikes "on the ground" but did not notice whether it had been cut. He only intended to show the motorcycle to Gilliam and then return it to the sidewalk. He "had no intention of taking it off the property or otherwise."
When a young woman came out of Big Boys Toys and asked where he was going with the motorbike, appellant replied, "`Im not going anywhere." He put the bike on its kickstand and "left it sitting" next to him. A few seconds later, Cook came out "jumping," and told appellant, "[You] should run; the police are coming and . . . [you] better run." Appellant walked beyond the Grocery Outlet, down the sidewalk, to the intersection of Broadway. He crossed Broadway before he noticed someone "walking fast toward" him. He then walked "to the gate where the hatchet was," retrieved it, and walked (on the sidewalk) "past Taco Loco." A police officer approached appellant about five minutes later. Appellant then had the hatchet, which might have been "between [his] legs" or "on the ground next to" him. He did not mention Gilliam or the Grocery Outlet to the officer.
Gilliam also testified in appellants defense. He said that appellant pushed a bike toward him from Big Boys Toys and asked him "if this was the bike [he] was talking about." Gilliam noticed a young woman come out of the store and ask appellant where he was going with the bike, just before he put the kickstand down. Gilliam heard someone "screaming . . . that they had called the cops." Gilliam "didnt want any part of it" because he had outstanding warrants.
Prosecution Rebuttal
After his arrest, appellant told Santa Maria Police Department Officer Mark Streker that he was taking the Viva back into the store to discuss it with employees. Streker told appellant "how ridiculous that sounded" because appellant had been "at least 50 feet away from the front of the store pushing the motorcycle toward the Stardust Motel." Appellant never mentioned Gilliam or the Grocery Outlet to Streker.
DISCUSSION
Prior Convictions
We reject appellants contention that the trial court committed reversible error by admitting his prior felony convictions of Vehicle Code section 2800.2 (evasion of a police officer). Appellant waived the right to raise this issue because he objected to the facts underlying the convictions without objecting to the admission of the convictions. Assuming without deciding that the court had erred in admitting them, we assess whether their admission was prejudicial.
In determining whether impeachment with prior felony offenses is prejudicial error, we follow the standard of review set forth in People v. Watson (1956) 46 Cal.2d 818, 836, unless a more fundamental constitutional right is involved. (People v. Collins (1986) 42 Cal.3d 378, 391, fn. 12; People v. Marquez (1986) 188 Cal.App.3d 363, 368-369.) Assuming that the court did err in admitting appellants two prior convictions of evading a police officer, it is not reasonably probable that the result of appellants trial would have been different absent their admission. The evidence against appellant was overwhelming and his defense was at best improbable.
Several witnesses saw appellant moving the Viva away from Big Boys Toys on March 29. The Viva and other bikes had been secured to a store pillar with a metal lock and chain earlier that day. Appellant was sitting near the bikes, alone, shortly before he took the Viva and rolled it toward the street. Gomez, Cook and Villaros saw him run away with the Viva. Appellant held the Viva until Cook grabbed it from him.
There was a "straight cut" in the metal cable that had secured the Viva before appellant took it. Gomez saw appellant holding a hatchet while he had the Viva. Appellant had a hatchet between his legs when the police found him.
Appellants inconsistent explanations for his conduct undermined his credibility. He testified that he just wanted to "show" the Viva to a friend. On March 29, he told Cook that he was taking it to a trailer for a friend who bought it, and told Streker that he was taking it back to the store to talk with employees.
Appellants claims regarding the hatchet also seemed improbable: He found it in a dumpster, carried it across town on a bike, and hung it on a fence, unattended, while he visited a friend and went across the street to a shopping center. Moreover, the prosecution impeached him with a burglary conviction. Considering the record as a whole, it is not reasonably probable that the result of the trial would have been different absent his impeachment with two prior convictions of evading a police officer.
Prosecutorial Misconduct
Appellant contends that several instances of prejudicial misconduct by the prosecutor denied him a fair trial. We disagree. First, appellant waived this contention by failing to object on the ground of prosecutorial misconduct in the trial court. Unlike People v. Hill (1998) 17 Cal.4th 800, 820, this is not a case where the trial courts prior rulings and comments to the jury demonstrated that defense objections to improper comments by the prosecutor would have been futile. Here, the trial court maintained an appropriate neutrality. Appellant has not demonstrated that objections would have been futile.
Had the issue been preserved for review, we would affirm appellants conviction because little, if any, misconduct occurred. "`A prosecutors conduct violates the Fourteenth Amendment to the federal Constitution when 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 [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. [Citation.]" (People v. Tafoya (2007) 42 Cal.4th 147, 176.)
Questioning Appellant About the Credibility of Other Witnesses
Appellant contends that the prosecutor committed misconduct by compelling him "to give his opinion regarding the credibility of other witnesses." Our Supreme Court recently addressed such conduct: "`[C]ourts should carefully scrutinize [a prosecutors] "were they lying" questions in context. They should not be permitted when argumentative, or when designed to elicit testimony that is irrelevant or speculative. However, in its discretion, a court may permit such questions if the witness to whom they are addressed has personal knowledge that allows him to provide competent testimony that may legitimately assist the trier of fact in resolving credibility questions. With respect to asking such questions of a defendant, `[a] defendant who is a percipient witness to the events at issue has personal knowledge whether other witnesses who describe those events are testifying truthfully and accurately. As a result, he might also be able to provide insight on whether witnesses whose testimony differs from his own are intentionally lying or are merely mistaken. [Citation.]" (People v. Tafoya, supra, 42 Cal.4th at p. 178.)
Appellant complains that the prosecutor asked him several questions during cross-examination that improperly sought his opinion of the credibility of other witnesses. The following colloquy occurred:
"Q. Now, you spoke about the young man [Cook] that stopped you out there; you said he was a little hyper?
"A. Very.
"Q. And you told him that you had come there to pick up the motorcycle for a friend who had bought the motorcycle?
"A. No, I did not.
"Q. Do you deny telling him that?
"A. I did not make that statement. What I told him was that I was there with a friend and we were discussing purchasing the motorcycle.
"Q. You said that he asked you for a receipt and you said you didnt have a receipt. Did that question-and-answer occur?
"A. I dont ever remember anything about a receipt.
"Q. He said that you told him you were taking the motorcycle to a trailer to put it in a trailer in the parking lot?
"A. "I dont recall anything about that conversation either. Not that I dont remember. Im not saying I dont remember; Im saying it didnt happen.
"Q. So Mr. Cook is making this up?
"A. Im saying
"[APPELLANTS TRIAL COUNSEL]: Objection; argumentative, Your Honor. [Italics added.]
"THE COURT: Sustained.
"Q. Is Mr. Cook incorrect when he says that you told him that you were there to pick up the motorcycle for a friend?
"A. He is incorrect.
"Q. Is he incorrect with his discussion about the trailer?
"A. Yes, I never mentioned anything about a trailer.
"Q. And hes also incorrect about the discussion about a receipt?
"A. Correct. The only conversation that I had with that man
"[PROSECUTOR]: No.
"[APPELLANTS TRIAL COUNSEL]: Your Honor, I think under [Evidence Code section] 356 hes entitled to complete the answer."
Appellant also complains about the following series of questions the prosecutor asked him:
"Q. Now, Guadalupe Gomez says he saw the top part of the hatchet sticking out of your sleeve [at the shopping center]?
"A. The hatchet never went across Broadway [to the shopping center].
"Q. So Guadalupe Gomez is mistaken about that then?
"A. Guadalupe Gomez is flat lying.
"Q. Hes lying?
"A. Yes.
"Q. Wade Cook is incorrect and Guadalupe Gomez is lying?
"[APPELLANTS TRIAL COUNSEL]: Im going to object; this is argumentative. [Italics added.]
"THE COURT: Sustained."
Here, appellant placed his own veracity in issue by choosing to testify. He claimed that part of Cooks testimony concerned something that did not happen, and that, contrary to his testimony, Cook did not pull the Viva away from him. In addition, the prosecutor did not ask appellant if Gomez was lying; rather, appellant volunteered that Gomez was "flat lying." The prosecutors questions properly allowed appellant to clarify his position and explain why the prosecution witnesses might have a reason to testify falsely. The jury could consider any such reason appellant provided; if he had no explanation, the jury could consider that fact in determining whether to credit his testimony. (People v Tafoya, supra, 42 Cal.4th at pp. 178-179.) The challenged questions regarding the credibility of witnesses "`sought to elicit testimony that would properly assist the trier of fact in ascertaining whom to believe." (Id. at p. 179.)
Improper Argument — Prosecutors Personal Opinion and Testimony
Appellants counsel objected stating, "calls for speculation, lack of foundation," when Cook testified that a photographic exhibit of the cable depicted "[a] clean cut, like some kind of sharp object." The prosecutor responded that "a sharp object could very well make that along with, . . . other objects; its a clean cut." Appellant argues that the prosecutors response constituted improper testimony. We disagree. Cook had already testified that the cable "was cut; it was a clean cut," and the prosecutors response was a reference to Cooks earlier testimony, with a reasonable argument that a lay witness could opine that it was made by a sharp object.
Appellant also claims that the prosecutor engaged in misconduct by offering his personal opinion regarding the credibility of Gomez. The prosecutor said: "[Appellant] say[s] . . . Gomez is a liar, but why should he lie? Hes doing his job . . . . He seemed like an intelligent person; if he really wanted to lie, he could have said, not only did I see [the hatchet], but he brandished it at me, or he took a swing at me with the ax, or better yet, I saw him break the cable. He didnt . . .; he [just] saw . . . [that] it was [sic] in his sleeve. [¶] . . . [¶] So I think the defense is a little critical o[f] Gomez[] . . . and if he wanted to lie, he could have made it a lot better than just seeing a little tip of the blade sticking out of his sleeve." Appellant did not object to this argument. Rather than expressing his personal opinion regarding Gomezs credibility, the prosecutor made a proper argument "based on inferences reasonably drawn" from the record. (People v. Anderson (1990) 52 Cal.3d 453, 479; see People v. Boyette (2002) 29 Cal.4th 381, 433.)
Misstatements of Law
Appellant claims that the prosecutor misstated the law and improperly shifted the burden of proof to appellant by making the following argument:
"Now, Judge Garcia said a felony conviction does not mean that you have to not believe him, but its certainly something that you can consider, and when you have two of them, it would be even — consideration to a stronger degree, and if theres three of them, even stronger. So I liken it — I make this argument that — the law doesnt say this word-for-word, but I make this argument — if you show me a felon, Ill show you a liar, and if you —" The court sustained appellants objection that the argument was improper.
Appellant complains that in making this argument, the prosecutor grossly mischaracterized the probative value of prior felony convictions. In this case, the challenged argument would not have confused the jury. The jury was instructed with CALJIC No. 2.23 that "[t]he fact of a conviction does not necessarily destroy or impair a witnesss believability" and that "[i]t is one of the circumstances that [jurors] may take into consideration." It was also instructed with CALCRIM 200, that if it believed that the attorneys comments on the law conflicted with the courts instructions, jurors were required to follow the courts instructions. Even if improper, the prosecutors comments concerning the credibility of a felon were not reasonably likely to change the result of appellants trial. As we explained above, the evidence against appellant was overwhelming and his defense was improbable, at best.
Appellant also claims that the prosecutor committed misconduct by leading the jury to apply the wrong standard of proof with the following argument: "Dont make me prove the case beyond all possible doubt or beyond imaginary doubt, just beyond a reasonable doubt; thats what weve done. Weve proven the case beyond a reasonable doubt. Imaginary doubt would be something like, I was just taking that bike to show to a friend. Possible doubt, imaginary doubt, thats all that is. The People have proven the case beyond a reasonable doubt. Hes guilty, the evidence shows that hes guilty and I ask you to return a verdict of guilty of grand theft." Appellant contends that in so arguing, the prosecutor used "appellants defense as the definition of insufficient doubt," where the instructions did not define "possible" or "imaginary doubt." We disagree.
The court properly instructed the jury regarding the beyond a reasonable doubt standard of proof and prosecutor did not indicate that a different standard should apply. Rather, he made a vigorous argument to illustrate that the prosecution had met the correct standard of proof in a case where appellants defense was implausible. (People v. Fosselman (1983) 33 Cal.3d 572, 580.)
Appellants trial counsel invited jurors to look on the ax (hatchet) for "stranded steel transfer" and "striations." The prosecutor responded with the following argument: "Now the prosecution doesnt have to prove beyond a reasonable doubt that theres a piece — a little piece of the cable on the ax. I would submit to you if [appellants trial counsel] was so concerned about that, he could have . . . removed [the ax] from evidence and had it tested if he wanted." Appellant claims that the prosecutor thereby improperly shifted the burden of proof to the defense. The record belies this claim. The prosecutor did not state that appellant carried the burden of proof. Further, his counsel objected that the evidence was no longer available for testing only because he erroneously assumed that the prosecutor had referred to testing a piece of cable. Once the prosecutor explained that he was "just talking about the ax itself," appellant stated, "We can still test it," and his counsel ceased objecting. The prosecutor made a permissible comment upon appellants failure to call a retained expert or other logical witnesses to rebut the prosecutions case. (See People v. Bolden (2002) 29 Cal.4th 515, 552-553; People v. Wash (1993) 6 Cal.4th 215, 262-263.)
Misstatements of Fact and Improper Reference to Facts Outside the Record
Appellant also claims that the prosecutor misstated the facts by arguing as follows: "[Appellant] was taking that bike and he was going to get out of there and none of those witnesses — I asked all three of them — youll recall the testimony — `Was anybody else around? They said, `No, just him. No Raymond Gilliam. [¶] . . .[¶] All the witnesses — the other phantom is who he was going to show the bike to; there was nobody else around." We are not persuaded by appellants claim that such argument involved the kind of reprehensible mischaracterization of the evidence that was labeled prosecutorial misconduct in Hill. Appellant neither denied being at Big Boys Toys nor claimed that other people were around him there. Thus, there was little, if any, significance to the prosecutors misstatement regarding the number of people he questioned about this topic.
Appellant further claims that the prosecutor committed misconduct by rebutting testimony that Cook would not speak with a defense investigator with a false claim that the defense investigator "wanted to go out there and disrupt the business" of Big Boys Toys. There was no evidence that the defense investigator wished to do so. The court sustained defense counsels objection to this argument. We do not perceive that argument as reprehensible misconduct designed to deceive the jury. It certainly did not render appellants trial fundamentally unfair. (See People v. Tafoya, supra, 42 Cal.4th at p. 176.)
Appellant also claims that the prosecutor referred to facts outside the record by arguing, "Its interesting to note that Rusty Bryant testified and you can see it on here, theres some little chips right up on the top of the blade right here (indicating) which would be consistent with hitting the concrete and breaking . . . ." This argument did not refer to facts outside the record. Instead, it referred to Bryants testimony that there were very small chips on the edge of the blade and asked the jury to rely on those facts to draw a reasonable inference (that the chips were consistent with the blade hitting the concrete and breaking). (See People v. Anderson (1990) 52 Cal.3d 453, 479.)
The judgment is affirmed.
We concur:
GILBERT, P.J.
PERREN, J. --------------- Notes: All statutory references are to the Penal Code unless otherwise stated.