Opinion
H035445 H036777
08-19-2011
THE PEOPLE, Plaintiff and Respondent, v. RAUL MATA et al., Defendants and Appellants. In re ORLANDO CRESWELL, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. Nos. CC811036, CC816686)
Codefendants Raul Mata and Orlando Creswell were convicted by a jury on a variety of charges relating to several violent robberies they committed against women who were apparently working as prostitutes. Mata was sentenced to a term of 75 years to life with a consecutive sentence of 21 years, and Creswell was sentenced to a term of 50 years to life with a consecutive sentence of 31 years.
On appeal, Creswell makes the following arguments: (1) the trial court erroneously denied his request for substitution of counsel; (2) the prosecutor committed reversible misconduct by violating an evidentiary ruling and by badgering him during cross-examination with questions that infringed on his right to counsel; (3) alternatively, in the event his claim of prosecutorial misconduct is deemed forfeited for failure to raise it below, his trial counsel was ineffective; (4) the foregoing errors were cumulatively prejudicial; and (5) his sentence under the three strikes law was unauthorized because the record does not show that the prior convictions allegations were found to be true.
Creswell has also filed a separate petition for writ of habeas corpus which we ordered to be considered with his appeal. In that petition, he raises the following arguments: (1) his trial counsel was ineffective for declining to consult an eyewitness identification expert to test the reliability of one of the victim's identification of him as one of the perpetrators; (2) his trial counsel was ineffective for failing to object to the prosecutor's misconduct in cross-examining him while he was on the stand; and (3) this court has deprived him of effective assistance of appellate counsel and due process by denying appellate counsel's request for ancillary funds to retain a forensic psychiatrist to evaluate the evidence and provide an opinion on whether there were grounds to challenge a victim's identification of him.
Mata contends that, during deliberations, the trial court's responses to the jury's questions were so incomplete and confusing that they violated his rights to due process and a fair trial. Mata also argues that the prosecutor committed misconduct by improperly shifting the burden of proof to the defense through his cross-examination of Creswell and this violated Mata's rights to due process and a fair trial. In the event the court finds that either of these claims has been forfeited due to the failure of his trial counsel to object below, Mata argues his trial counsel was constitutionally ineffective.
We disagree with all of the arguments raised on appeal by Mata and shall affirm the judgment as to him. We agree that Creswell's sentence under the three strikes law was unauthorized, but reject his remaining arguments. Accordingly, we will reverse the judgment as to him and remand for further proceedings and resentencing as explained below. We find no merit in Creswell's petition for writ of habeas corpus and will deny that petition.
I. Factual and Procedural Background
A. The charges
Mata and Creswell were charged by consolidated information jointly with robbery of an inhabited place in concert. (Pen. Code, § 213, subd. (a)(1)(A), count 1.) The information alleged that each defendant personally used a knife in conducting this robbery. (§ 12022, subd. (b)(1).)
Further unspecified statutory references are to the Penal Code.
Mata was charged individually with forcible sexual penetration (§ 289, subd. (a)(1), count 2), sexual battery (§§ 242, 243.4, subd. (a), count 3), robbery of an inhabited building (§ 213, subd. (a)(1)(A), count 4), burglary with a person present (§§ 459, 460, subd. (a), count 5), and making terrorist threats (§ 422, count 6). The information alleged that count 2 was committed during a burglary and that Mata personally used a dangerous or deadly weapon. (§ 667.61, subds. (a), (e).) As to count 4, the information alleged that Mata was armed with a handgun while committing that offense. (§ 12022, subd. (a)(1).)
Creswell was charged individually with robbery of an inhabited building (§§ 211, 212.5, subd. (a), count 7), intercourse with a minor more than three years younger (§ 261.5, subd. (c), count 8), burglary (§§ 459, 460, subd. (a), count 9) and misdemeanor battery (§§ 242, 243, subd. (a), count 10).
In addition, the information alleged that Mata had sustained two prior strike convictions (§ 667, subds. (b)-(i)), and two prior serious felony convictions (§ 667, subd. (a) ). Creswell was alleged to have sustained six prior strike convictions (§ 667, subds. (b)-(i)), three prior serious felony convictions (§ 667, subd. (a)) and to have served one prior prison term (§ 667.5, subd. (b)).
B. The prosecution's case
1. April 29, 2008 home invasion robbery/assault
In April 2008, victim 1 lived on Clearview Drive in San Jose. She worked out of her home as a masseuse, advertising her services in a local newspaper, The Metro, and on two Internet sites, Craig's List and My Redbook. When someone would call the cell phone number she listed in one of these advertisements, victim 1 would advise the caller of her hourly rate and her address and schedule an appointment.
At approximately 4:00 p.m. on April 29, 2008, victim 1 heard a knock at her door. There were two men there, whom victim 1 later identified as Creswell and Mata. Mata asked if there were two girls there, and when victim 1 said, "No," he and Creswell left.
Two hours later, victim 1 again heard a knock at her door. Through a small window next to the door, victim 1 saw Creswell and Mata had returned. She opened the door slightly and said, "Only one can come in." However, both men forced their way inside. Victim 1 tried to push her way out and fell outside the front door, screaming for help. Creswell and Mata dragged her back inside and a third man then entered her home.
Victim 1 was dragged from the front door into the living room, where she got to her feet and was forced into the kitchen by Mata. He knelt on top of her, holding her face down on the kitchen floor. He brandished a box cutter and asked for money. Victim 1 broke free and ran to the garage, but Mata was able to grab her and pull her back into the house. He struck her several times in the right cheek with his closed fist, and called out for assistance from his accomplices.
Creswell came into the kitchen and grabbed victim 1 by the hair, yanking some out by the roots. He forced her down to the floor again, face first, and hit her with his closed fist. The inside of victim 1's lip began to bleed. Mata left the kitchen. Creswell warned victim 1 not to move and not to run. He cut her left arm with a kitchen knife, leaving a mark, and pushed his elbow against her neck as she lay on the floor. Victim 1 could not breathe and was afraid she was going to die.
The three men subsequently dragged victim 1 to a locked bedroom, which one of them had broken open. Mata pushed her onto the bed and he and Creswell tied her hands and feet with computer cords. Creswell and the third man left the room.
Mata stayed behind and pressed victim 1's face on the bed. He pulled down her underpants and put a finger on or in her rectum. He said something "nasty" to her, but stopped when Creswell called out to him from another part of the house. The two men then dragged her out of the bedroom, still bound and with her underpants pulled down, into the master bathroom and closed the door, leaving her alone.
She managed to break free of the cords and called her husband from the phone in the bedroom. As she went downstairs, she saw Mata was still in the living room. Creswell called out to him and the two left through the front door. Victim 1 ran outside and saw all three men. The third man was in the driver's seat of a red car and the other two were loading the car with items stolen from her house. She screamed and Creswell and Mata jumped in the car, which drove off. Victim 1 chased after the car on foot for a short distance, but did not get the license number.
The men took more than $3,000 in cash, three computers, three watches (including two Rolexes), a watch winder and a cell phone. The total value of the property taken was more than $20,000.
Police officers responded to the scene and observed that the door to the master bedroom had been damaged, with part of the baseboard kicked in. Every room in the house had been ransacked, and victim 1 had noticeable injuries on her face, arms and under both eyes. Her lips were swollen, and she was crying, frightened and upset.
Victim 1 described one suspect as a Black man, weighing about 160 pounds and standing about 5 feet, 9 inches tall. Another suspect was a Hispanic man in his mid-30s, weighing about 180 pounds and standing about 5 feet, 6 inches tall. This man also had a deformed right ear, and wore painter paints with splotches of paint on them. Victim 1 said that she would be able to identify both of these men if she saw them again.
As for the third man, victim 1 stated she did not get a good look at him, but described him as a Hispanic man, also in his mid-30s, weighing about 190 pounds and standing about 5 feet, 10 inches tall.
2. June 13, 2008 home invasion robbery
The People also presented evidence of a home invasion robbery, allegedly committed by Mata, on June 13, 2008, at a residence on Ribisi Circle in San Jose. The jury found Mata not guilty on the count (count 4) alleged in connection with that robbery.
3. July 7, 2008 home invasion robbery
Following the April 29, 2008 home invasion robbery and assault, victim 1 moved to a residence on Hostetter Road, near the intersection of Hostetter and Capitol Avenue. She still was in the massage business, but had new phones and new phone numbers. When a potential client called to book a massage, she quoted them a price and told them only that she was near Hostetter and Capitol Avenue, so as to avoid walk-up business.
On July 7, 2008, victim 1 received three phone calls asking for the address and a price. Someone called at 3:00 p.m. to book a massage at 4:00 p.m., said he was at the intersection of Hostetter and Capitol Avenue and wanted the house address. Victim 1 gave that person her address.
The phone rang again at 4:00 p.m., and victim 1 could not tell if it was the person who had called at 3:00 p.m. He asked for a massage and how much it cost. He said he was at the corner of Hostetter and Capitol, then asked for the house address. No one showed up for a massage at 4:00 p.m., however.
Around 6:00 p.m., victim 1 heard a knock at the door. She was alone and thought it was the person who had made the 4:00 p.m. appointment. Victim 1 looked through the peephole and saw Mata. She recognized him as the man who had robbed her in April and thought he was there to rob her again.
Because he appeared to be alone, victim 1 decided she would try to catch him before he could rob anyone else, so she unlocked the door and started to open it. Mata immediately pushed his way in, but victim 1 was able to run past him. He grabbed at her, but she evaded him and ran towards the street. Mata gave chase, as victim 1 screamed for help. At some point, he passed her and began to run along Hostetter toward Capitol Avenue, with victim 1 now chasing him, still calling for help.
Several other people joined the chase and caught Mata at a nearby gas station. When victim 1 arrived, she told the men who had cornered Mata that he was a robber and asked someone to call the police. Victim 1 told Mata she recognized him from the robbery at Clearview Drive. Mata glared at her and said in a low voice, "I know you. I'll kill you."
When the police arrived, victim 1 told them that Mata had just entered her home and was the same man who had broken into her home in April and had robbed, burglarized and assaulted her.
4. July 25 and July 26, 2008 unlawful intercourse, robbery and burglary
On these dates, victim 2 was 17 years old and working as a prostitute out of the Park Inn Motel in Milpitas. She advertised her services on Craig's List, and had two advertisements, each with a different picture and phone number. One of her cell phones had a 916 area code and the other had a 530 area code.
Around 4:00 p.m. on July 25, victim 2 received a call from someone who wanted to have sex with her. She told him the location and how much she charged. The caller said he was interested and told her his name was Larry.
Approximately an hour later, she got a call from the same man and gave him directions to the fast food restaurant across the street from the motel. He called from the restaurant later the same day and victim 2 gave him her room number.
Creswell, who victim 2 identified in a photo lineup and at trial, knocked on her door. After she let him in, she first told him she was 19, but later admitted she was 17. They smoked marijuana together and, after Creswell took a shower, they had sex. Before leaving, Creswell said he would like to see her again the following day, and victim 2 told him to call the same 916 number.
Creswell called victim 2 the following afternoon (July 26) and made a date. He was late, and when he arrived, a large Black woman entered the room with him. The woman, holding a box cutter, demanded victim 2's money and told her to go into the bathroom. When victim 2 yelled back at her, the woman grabbed her by the back of the neck, holding the box cutter by her face and neck. The two struggled, and victim 2 was cut across the thighs by the box cutter. The woman pushed victim 2 into the bathroom and into the bathtub.
While the woman guarded victim 2 in the bathroom, victim 2 could hear Creswell emptying drawers and flipping the mattress over in the other room. Altogether, Creswell and his accomplice were in the motel room about 20 minutes. Before leaving, they tied an extension cord tightly from the outside of the door handle to the pipe underneath the bathroom sink. When victim 2 could no longer hear their voices, she pushed on the bathroom door and eventually managed to squeeze through. As her cell phones had been taken, she used the phone in the room to call the front office of the motel and asked the desk clerk to call the police.
5. Further investigation by police and testimony regarding cell phone records
Victim 2 reported that Creswell and the woman took her purse, cash, marijuana, two laptops and three cell phones. She gave police the numbers for two of the cell phones, and Detective Edward Gallardo subpoenaed records from the service provider for one of those numbers. The records disclosed that the phone No. 408-595-7584 repeatedly called victim 2's phone during the relevant time period. When Creswell was subsequently arrested, he was carrying a cell phone using the phone No. 408-595-7584.
Detective Gallardo initially said the last four digits of the number was "9784," but that appears to have been either a misstatement on his part or a transcription error, as all subsequent references were to "7584."
Gallardo obtained the records from the service provider for the phone in Creswell's possession and found that 13 calls were made between that phone and victim 2's phones over a three-day period surrounding the robbery at the motel.
San Jose Police Officer Keith Mizuhara learned that Creswell and Mata worked for the same floor installation business in Santa Clara. The cell phone Creswell had in his possession at the time of his arrest had been provided to him by his employer, though his employer allowed him to use the phone after hours and to conduct personal business.
Mizuhara obtained the records for that phone number for April 2008, and those records showed that the cell phone received a call from Creswell's home telephone number at about 6:30 p.m. on April 29. At the time of this call, the cell phone was within a mile of victim 1's residence on Clearview Drive.
B. Defense case
Creswell testified on his own behalf and was the only witness presented by the defense. On direct examination, he admitted that he had three felony theft convictions in 1981, two felony theft convictions in 1985 and a felony theft conviction in 1995.
Creswell worked at a flooring company in Santa Clara, along with Mata. In April and July of 2008, his scheduled working hours were from 7:30 a.m. to 5:30 p.m. He would work in the warehouse in the mornings and stock jobs, i.e., deliver flooring materials to a site for installation, in the afternoon. Though he knew Mata and would sometimes work with him on installations, they were not friends outside of their employment. He carried tools on the job, and had a box cutter in his tool box.
1. April 29, 2008
On April 29, 2008, Creswell worked at the warehouse in the morning, unloading trucks. He then began a stocking job in Palo Alto later, but Mata was not assigned to a job with him that day.
His employer provided him with a cell phone with the phone No. 408-595-7584, which Creswell used for work purposes and also to call prostitutes to set appointments for later in the day. The floor installation shop was located on De La Cruz Boulevard and Martin Avenue, and Creswell admitted calling three or four prostitutes from that location on April 29, 2008.
Creswell explained that the incoming call to his cell phone at 6:30 p.m. was from his fiancee. At the time, he was near the Berryessa Flea Market and was going to buy marijuana near that location. He said it was only a coincidence that this was very close to the location where victim 1 had been robbed just 10 minutes earlier.
Creswell denied entering victim 1's residence and said he had never seen her before seeing her in court. At the time he was identified by victim 1 in an in-person lineup, he was incarcerated on another charge. Creswell only learned that he was going to participate in a lineup after he had been brought to the downtown jail. He asked for an attorney, but was refused. Creswell, who was the only lineup participant with glasses, was asked to remove them. He initially refused to do so, but eventually complied. 2. July 25 and 26, 2008
Creswell testified that he reported to work on July 25, 2008, in the morning, and sometime that day, called victim 2 after seeing her advertisement on Craig's List. He met victim 2 later that day at the Park Inn in Milpitas, paid her, had sex with her and then returned to work.
The next day, he talked to victim 2 on his company phone and arranged to meet with her again, but did not discuss a specific time. She asked if would come and smoke marijuana with her at the motel. Creswell told victim 2 that he was with "Micka" Ringold, a prostitute with whom he associated, and victim 2 told him to bring Ringold along. Creswell called victim 2 at 7:06 p.m. to tell her he was in front of the motel, and then he and Ringold went up to victim 2's room.
While the three of them were in the room, a Black man in his early 30s, five feet, 10 inches to six feet tall and 210 pounds came in. He began to argue with Creswell and told him to get out. Creswell assumed the man was victim 2's pimp, and because he felt he was being threatened, Creswell left.
He called victim 2 again at 7:27 p.m. but there was no response so he went back to his workplace. Creswell called a third time about 8:38 p.m., and he thought that victim 2 had tried to set him up into a confrontation with her pimp or her boyfriend. He made no further effort to contact her.
Creswell denied having Ringold force victim 2 into the bathroom and never saw that happen. He denied searching victim 2's room or possessing a box cutter when he went to see her.
Regarding his employment, Creswell testified he was paid for eight hours a day and worked 40 hours per week. A record was generated every time he was sent out to work on a project, but Creswell admitted that he never contacted his employer for copies of his work records. He did not deny making any of the phone calls listed on the cell phone records produced by the People.
He believes he was falsely accused by the victims. Ringold was arrested and charged with some of the same counts. On July 1, 2009, he wrote Ringold a letter, apologizing for getting her into a situation where she was charged with a crime.
Ringold, who had pleaded to the charges prior to trial, was called as a witness for the prosecution but, out of the presence of the jury, invoked her Fifth Amendment privilege not to testify.
C. Verdict and sentencing
The jury found Mata guilty on counts 1, 3 and 5. He was found not guilty on count 4 and the jury could not reach a verdict on counts 2 and 6. Creswell was found guilty on counts 1, 7, 9 and 10, but the jury could not reach a verdict on count 8. The jury also found that both defendants were armed with a knife in connection with count 1, and that a person was present in connection with the burglary charged in count 5.
Mata was sentenced to consecutive terms of 25 years to life on counts 1, 3 and 5, consecutive to a determinate term of 21 years. After the trial court denied his Romero motion, Creswell was sentenced to consecutive terms of 25 years to life on counts 1 and 7, consecutive to a determinate term of 31 years.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
II. DISCUSSION
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
Creswell argues that the trial court abused its discretion in denying his Marsden motion because it failed to conduct an adequate inquiry into the basis of his complaints.
On October 14, 2009, Creswell moved for substitution of counsel, arguing that his current counsel was ineffective for refusing to consult with an expert in the field of eyewitness identification. At the hearing, Creswell said he believed that an eyewitness expert "needed to be brought in to show how unreliable eyewitness identification is." He also complained that his counsel had only been to visit him once and they had not had "adequate time to discuss a strategy on how . . . to attack the trial case."
He does not advance this claim on appeal and we do not address it further.
Creswell's counsel explained "[i]t's my understanding based on the case law that in this particular case cross-examination is the proper way to challenge an identification by a witness in court." He believed identification experts are helpful in situations where the witness's visibility was limited, by lighting perhaps, or where the victim only saw the perpetrator for a few seconds, and could thus provide only a general description. Victim 1 claimed she had viewed Creswell outside her house two hours before the home invasion robbery and again during that robbery for a period of minutes. Victim 2 claimed to have first smoked marijuana with Creswell before having sex with him the day before she was robbed. Based on this anticipated testimony from the victims, Creswell's counsel believed an eyewitness identification expert would not be helpful.
The trial court agreed that identification experts focus on the unreliability of eyewitness identifications where there was limited time to observe the suspect and poor lighting, and noted that it was defense counsel's decision to make on what witnesses to call. The trial court denied the motion to substitute counsel, stating "it's [defense counsel's] judgment that an ID expert isn't necessary in this case and it sounds like he's got firm grounds for making that judgment. He's gone over everything he needs to go over with you, he's prepared as always to go forward, read all the materials that are necessary to go forward. He still has plenty of time with you the next four days or so."
To protect and ensure a defendant's constitutional right to effective assistance of counsel, a court must replace appointed counsel with new counsel where "the defendant has made 'a substantial showing that failure to order substitution is likely to result in constitutionally inadequate representation' [citation], or stated slightly differently, 'if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.' " (People v. Hines (1997) 15 Cal.4th 997, 1025.) Although a Marsden hearing is informal, a court must "ascertain[] the nature of the defendant's allegations regarding the defects in counsel's representation and decide[] whether the allegations have sufficient substance to warrant counsel's replacement." (Ibid.) To this end, the court must allow the defendant to explain the specific reasons for seeking new counsel and relate specific examples of allegedly ineffective representation. (Id. at p. 1024; People v. Webster (1991) 54 Cal.3d 411, 435; Marsden, supra, 2 Cal.3d at pp. 123-124.) "Depending on the nature of the grievances related by defendant, it may be necessary for the court also to question his attorney." (People v. Turner (1992) 7 Cal.App.4th 1214, 1219.)
On appeal, "[w]e review a trial court's decision declining to relieve appointed counsel under the deferential abuse of discretion standard." (People v. Jones (2003) 29 Cal.4th 1229, 1245.) Pursuant to that standard of review, we find no error.
Contrary to Creswell's contentions, the trial court adequately inquired into the basis of his request to substitute counsel and, after affording counsel an opportunity to explain, found that counsel was not providing ineffective representation by failing to consult with an eyewitness identification expert. Though Creswell believed that such an expert would have been helpful to his defense, his attorney believed otherwise and made the tactical decision to challenge victim 1's identification through cross-examination instead. "Tactical disagreements between the defendant and his attorney do not by themselves constitute an 'irreconcilable conflict.' " (People v. Welch (1999) 20 Cal.4th 701, 728-729.) Consequently, the trial court did not err in denying Creswell's Marsden motion.
B. Prosecutorial misconduct
"A prosecutor commits misconduct when his or her conduct either infects the trial with such unfairness as to render the subsequent conviction a denial of due process, or involves deceptive or reprehensible methods employed to persuade the trier of fact." (People v. Avila (2009) 46 Cal.4th 680, 711 (Avila).) A finding of misconduct does not require a determination that the prosecutor acted in bad faith or with wrongful intent. (People v. Crew (2003) 31 Cal.4th 822, 839.) To preserve a claim of prosecutorial misconduct for appeal, a defendant must object and seek an admonition if an objection and admonition would have cured the harm. (People v. Hill (1998) 17 Cal.4th 800, 820 (Hill).)Furthermore, "[r]eversal of a judgment of conviction based on prosecutorial misconduct is called for only when, after reviewing the totality of the evidence, we can determine it is reasonably probable that a result more favorable to a defendant would have occurred absent the misconduct." (People v. Castillo (2008) 168 Cal.App.4th 364, 386.)
We address in detail Creswell's specific complaints regarding the prosecutor's conduct below, and discuss how that conduct did not rise to the level of impermissible misconduct.
1. In limine ruling regarding prior convictions
Creswell contends that the prosecutor violated an in limine ruling by eliciting an admission during cross-examination that two of Creswell's prior convictions were for burglarizing a motel room.
Before trial, the parties agreed to Creswell's motion to a bifurcated trial on his strike priors and prison priors. The trial court also ruled that, if Creswell took the stand, the prosecution could impeach him with certain of his prior convictions. Creswell's three burglary convictions from 1981 and two burglary convictions from 1985 could be referred to as "felony theft convictions." At some point during the trial, Creswell withdrew his request for a bifurcated proceeding on his prior convictions, and the parties agreed that his 1981 and 1985 burglary convictions could be referred to as such in front of the jury.
During direct examination, Creswell stated that he had been convicted for "felony theft" crimes in 1981 and 1985. On cross-examination, the following exchange occurred: "Q. And you've been previously arrested before; isn't that true?
"A. Yes, I have.
"Q. In fact in 1981 you were convicted under docket [sic] Santa Clara County docket [No.] 80761; isn't that correct?
"A. Yes.
"Q. And you were convicted of breaking into a home with the intent to steal on three separate convictions; three separate dates on that docket; isn't that correct?
"A. Yes.
"Q. You've also been arrested and subsequently convicted in 1985 on two incidents where you broke into a motel room and stole items out of that room; isn't that correct?
"[Defense counsel]: Objection, your Honor. Form of the question.
"THE COURT: I'm not familiar with the facts so I'll sustain it. Do you want to approach?
"Q. (By [district attorney]): Isn't it true in 1985 you were convicted of what's known as residential or first degree burglary?
"A. Yes.
"Q. And that means it's a burglary of a residence where someone inhabits, one lives; correct?
"A. Yes.
"Q. And you were convicted of that twice in 1985; correct?
"A. Yes.
"Q. And that is under docket [No.] S100790 here in Santa Clara County?
"A. Yes."
Subsequently, out of the presence of the jury, Creswell's counsel raised the issue with the trial court, asking for a mistrial due to his concern that the jury, having heard that Creswell had been twice convicted for burglarizing a motel room in 1985, would "suspect where there's smoke, there's fire." The trial court denied the motion, but offered to admonish the jury that Creswell was convicted of burglary, but that the prosecution's reference to a "motel" was stricken and should not be considered. Defense counsel declined the offer on the grounds such an admonition would simply highlight the issue for the jury.
Although Creswell's counsel timely objected to the prosecutor's questioning, he ultimately refused the trial court's offer to admonish the jury, and Creswell has forfeited the issue of prosecutorial misconduct. In general, "[s]imply to object or make an assignment of misconduct without seeking a curative admonition is . . . not enough." (People v. Bonin (1988) 46 Cal.3d 659, 689.) Even if the claim were preserved and even assuming the prosecutor had intentionally elicited inadmissible testimony, in view of the totality of the evidence presented at trial, Creswell cannot establish he was prejudiced by the reference to the 1985 burglaries as motel burglaries. Those burglaries were committed nearly one-quarter of a century before the 2008 burglary at the Park Inn Motel, and given such a lengthy gap, it is highly unlikely a reasonable jury would conclude Creswell habitually burglarized motel rooms. Furthermore, victim 2 testified in great detail about her interactions with Creswell in her motel room on July 25 and 26, 2008, and the jury obviously chose to believe her version of those events, as opposed to Creswell's version.
2. Improper cross-examination
Creswell also argues the prosecutor engaged in improper cross-examination which suggested it was Creswell's duty to produce documents corroborating his alibi.
After Creswell testified on direct examination about his whereabouts on April 29, 2008, the date of the robbery on Clearview Drive, the prosecution asked if Creswell had asked his employer for copies of his work schedule and job assignments for that day. Creswell admitted he had not. The prosecution continued, as follows:
"Q. You're asking this jury to believe everything you're saying because you're saying it?
"A. Yes.
"[Defense counsel]: Objection. Argumentative.
"THE COURT: Sustained.
"Q. (By [district attorney]): You have nothing to support what it is you're testifying to; isn't that correct?
"[Defense counsel]: Objection. Argumentative.
"THE COURT: Why don't you rephrase.
"Q. (By [district attorney]): Do you have any documents, any proof other than what you assert in People's exhibit 28 and 23 which are you[r] cell phone records, to verify you were where you say you were on those days?
"A. I believe I do, sir.
"Q. Well, what are they? What records do you have?
"A. There is a work schedule of me that--of [defense counsel] has that shows--"Q. No. I'm asking you, have you presented anything, not what you supposedly gave your counsel, I don't want to get into that. Do you have anything to present to this jury?
"A. I'm incarcerated so no, I can't produce anything.
"Q. Well, you have the right to subpoena, don't you?
"A. Yes, I do have the right to subpoena but my lawyer
"Q. Have you ever requested a subpoena be provided to Mr. Keenan regarding records from those days?
"A. No, I did not sir."
Defense counsel did not raise the issue of prosecutorial misconduct below and has thus forfeited the claim. (Hill, supra, 17 Cal.4th at p. 820.) Had the issue been raised below, the trial court could have admonished the jury to disregard the questioning and the implication that the defense had the burden of proof.
However, even if the claim were not forfeited, Creswell cannot establish prejudice. Based on the totality of the evidence presented at trial, consisting of the cell phone records tying Creswell to a location within a mile or two of victim 1's home at the time of the offense, as well as victim 1's direct testimony about Mata and Creswell assaulting her and burglarizing her home, it is not reasonably probable the jury would not have convicted Creswell if the prosecution had not questioned him about failing to produce his work schedule for April 29, 2008.
3. Ineffective assistance of counsel for failing to object
Creswell contends that, to the extent that his claim of prosecutorial misconduct is deemed forfeited due to his counsel's failure to raise the issue before the trial court, his counsel provided ineffective assistance.
To establish ineffective assistance of counsel, Creswell must show that (1) his counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and (2) counsel's deficient performance was prejudicial, i.e., a reasonable probability exists that, but for counsel's performance, the result would have been more favorable to the defendant.
As discussed above, there was no prosecutorial misconduct, so any specific objection on that ground by defense counsel would have been properly rejected by the trial court, and it is not ineffective assistance for counsel to refrain from raising meritless arguments. Furthermore, it is clear defense counsel's performance was not prejudicial and any such errors were harmless beyond a reasonable doubt because the evidence against Creswell, consisting of the testimony by victim 1 and victim 2 as well as the cell phone records, was compelling. It is not reasonably probable Creswell would not have been found guilty absent the claimed misconduct.
C. Cumulative prejudice
Creswell also argues that, even if the various errors described above do not rise to the level of reversible error individually, the cumulative effect of those errors is sufficiently prejudicial to warrant reversal. We disagree. As we have noted, there was no Marsden error, and to the extent the prosecutor's questions were improper, the totality of the evidence weighed so heavily against Creswell, it is not reasonably probable that Creswell would have obtained a better result even if the prosecutor had not engaged in the claimed misconduct. Accordingly, this case is not one where the whole of the errors exceeds the sum of the individually nonprejudicial components. (Hill, supra, 17 Cal.4th at p. 845.)
D. Creswell"s prior strikes
Creswell contends that his sentence under the three strikes law is unauthorized because there was no finding by the jury that the prior conviction allegations were true. 1. Procedural background
Creswell initially requested a bifurcated trial on the allegations that he suffered prior strike convictions, but at some undisclosed point during trial, he withdrew that request. On cross-examination, Creswell admitted he suffered prior convictions for three counts of residential burglary in Santa Clara County Superior Court docket No. 80761 in 1981, two counts of residential burglary in Santa Clara County Superior Court docket No. S100890 in 1985 and one count of robbery in Santa Clara County Superior Court docket No. 175576 in 1995.
Following Creswell's testimony, and out of the jury's presence, the court inquired if the prosecutor had covered all the alleged strike priors. The prosecutor said he had, but that he had not asked Creswell about a prior prison term. When asked by the court if Creswell would admit the prison prior or wanted to submit it, defense counsel requested a jury trial on the allegation.
The trial court then proceeded to advise Mata of his rights and obtained admissions from him on all his alleged prior convictions. The record does not reflect any waivers or admissions by Creswell with respect to his prior strike convictions.
The case was submitted to the jury, but there is no indication that the jury was asked to find whether the allegations that Creswell had suffered prior strike convictions were true. The jury was not instructed to make such findings nor was it provided verdict forms on those allegations. The jury returned verdicts on the substantive offenses only. There was no reference to the prior strike allegations when the verdict was read or when the jury was polled. The court declared the verdict recorded and discharged the jury, without objection. The prosecutor, again without referencing the prior strike allegations, moved to dismiss the prison prior allegation.
Creswell denied the truth of the allegations of the prior convictions, thus placing them in issue to be determined by a trial. Section 1025, subdivision (b), provides that "the question of whether or not the defendant has suffered the prior conviction shall be tried . . . in the case of a plea of guilty or nolo contendere, by a jury impaneled for that purpose, or by the court if a jury is waived."
Creswell's right to a trial by jury on the prior conviction allegations is not derived from either the United States Constitution or the California Constitution; rather, it is a purely statutory right granted him under section 1025. (People v. Wiley (1995) 9 Cal.4th 580, 589.) As a purely statutory right, it may be waived or forfeited. (People v. Vera (1997) 15 Cal.4th 269, 274-277; People v. Saunders (1993) 5 Cal.4th 580, 591 (Saunders).)
In Saunders, the defendant requested a bifurcated trial of the substantive offenses and the prior conviction allegations. After the jury found him guilty on the burglary charge, the jury was discharged and the trial court continued the case to the following day. (Saunders, supra, 5 Cal.4th at p. 586.) A newly impaneled jury ultimately found the prior conviction allegations to be true and on appeal, defendant argued that impaneling a new jury violated state statutory law. (Id. at p. 587.) The California Supreme Court found the trial court did violate sections 1025 and 1164, subdivision (b), by discharging the jury before it determined the truth of the prior conviction allegations. (Saunders, supra, at pp. 591-592.) However, the Supreme Court emphasized that "a defendant may not complain on appeal of a departure from this procedural requirement unless the error has been brought to the attention of the trial court by means of a timely and specific objection." (Id. at p. 590.) Accordingly, it rejected the defendant's claim that he was entitled to relief based on his section 1025 right to have the same jury that decided the guilt issue decide the truth of the prior conviction allegations. (Saunders, supra, at p. 591.) "He forfeited that right by failing to object in a timely fashion when the jury was discharged." (Ibid.)
Here, too, Creswell failed to object before the jury was discharged, and thus has forfeited his right to complain that the judgment must be reversed due to the trial court's failure to ensure that the jury determined the truth of the prior conviction allegations.
However, merely because Creswell has forfeited his statutory right to a jury trial on the truth of the prior conviction allegations does not mean that he has forfeited his right to have a court trial on those allegations. Pursuant to section 1025, subdivision (b), Creswell is entitled to a trial on the allegations, either by the court or a jury. Since he forfeited his right to a jury trial, the trial court should have conducted a hearing on the truth of those allegations before proceeding to sentencing. While it could be argued that the unchallenged proof below shows that Creswell did in fact suffer the prior convictions, since he admitted to them on cross-examination and sought to have them stricken by way of a Romero motion, "we believe it is not the role of this court to make factual findings." (People v. Walker (2001) 89 Cal.App.4th 380, 387.) That is the province of the trial court, and we will therefore reverse and remand the matter for it to conduct the hearing. It may then resentence Creswell as appropriate.
E. Trial court's responses to jurors' questions regarding stipulations
Mata argues that the trial court's responses to the jury's questions misled it into believing that defense counsel had stipulated that Mata was guilty of the charged crimes. We disagree.
1. Factual background
At trial, the prosecution and defense counsel stipulated, as to count 1, "[t]hat the people who entered [victim 1]'s home on Clearview Drive San Jose, California on April 29, 2008 intended to rob her. These same people intended to take [victim 1]'s property from her by force or fear and against her will." With respect to count 5, the parties stipulated, "[t]he person who entered [victim 1]'s home on Hostetter Road in San Jose, California on July 7th 2008 intended to burglarize the home. At the time this person entered the home he possessed the requisite intent to commit a theft therein." With respect to count 4, the parties stipulated "[t]he people who entered [victim]'s home on Ribisi Circle in San Jose, California on June 13th 2008 intended on robbing her. These same people intended to take her property from her by force or fear and against her will."
On the second day of deliberations, the jury sent out the following question: "We need clarification on the stipulation about intent. Does the stipulation imply or explicitly state that these defendants had the intent to burgularize [sic] and rob the victims? In other words could 'intent' be implied to someone else besides the defendents [sic]." (Underscore in original.) The trial court brought the jurors into the courtroom and asked that they clarify their question as it was unclear if they were asking two separate questions and whether the second part of the question was referring to uncharged participants or to the defendants.
Following a recess, the jury sent out a note asking to be reinstructed on "what a stipulation is and how to use it?" In the same note, the jury also asked, "Are stipulations facts?" In response, the court summarized the fifth paragraph of CALCRIM No. 222 regarding stipulations as follows: "During the trial you were told that the People, that's the DA there and the defense, the other parties here agreed or stipulated to certain facts. This means that they all three accept those facts as true because there is no dispute about those facts. You must also accept them as true."
Juror No. 2 asked to speak to the court. She informed the court she felt uncomfortable in the jury room and the other jurors were being condescending towards her. She admitted she had the questions about the stipulations. The other jurors laughed about it and "they found it very dumb or stupid of me." The court directed the jury to take a short break, after which Juror No. 2 said she could return to the jury room and continue deliberating. The court advised the jurors to treat each other courteously.
The next day, Juror No. 2 again spoke with the court, saying when she returned to deliberations the previous day, "the tension just boiled up." The other jurors "just want to go ahead and vote and convict and get it over with and I have questions . . . and I believe I've had enough." She was asking questions based on her notes from the trial, "and they're blocking me out and 'No, it's already a fact, they admitted to guilt. The attorney signed this.' "
The court asked if there was still some question about stipulations in the jury room and Juror No. 2 said there was. The court brought out the rest of the jury and asked them to formulate a question about the stipulations to clear up any confusion the members of the jury may have.
Shortly after the jury returned to the jury room, Juror No. 2 walked out and asked to speak to the court again. In tears, she told the court after she wrote out her question and read it to the other jurors, they laughed at her and one of them said, "Are you fucking serious? You don't fucking get it." The court had the deputy bring out the other jurors and the question. The question asked: "Is the stipulation stating that the attorney's (3) agreed on the count's that the deffendant's commited the crime. [¶] If the defendant entered the building is it automatic that he was there to comit robbery? On Count 5 for Mata as its stipulates." [Sic.]
As to the first question, the court responded that it was too general, since the defendants were charged with different crimes in different counts. The court changed the word "robbery" in the second question to burglary, since that was what was charged in count 5. The court then answered the second question as follows: "To prove the defendant guilty, is guilty of this crime, the People must prove two things. One that the defendant and it's Mr. Mata charged in this case, we're not talking about Mr. Creswell, entered the home of [victim 1] on Hostetter on 7-7-08 beyond a reasonable doubt. And when he entered the home he entered with the intent to commit theft. [¶] The second one is stipulated to. That whoever entered the home, entered with the intent to commit theft. So there is only one element that you have to find in order to find Mr. Mata guilty beyond a reasonable doubt. You'd have to find that the People have proven that Mr. Mata entered the home of [victim 1] on Hostetter on 7-7-08."
A juror wrote out another question: "Define burglary. Could Mr. Mata have been there for some other reason? [¶] Are the attorneys agreeing he was there to with [sic] intent to commit robbery? [¶] We believe he was there with her but for a masage [sic] (sex)." The court consulted with counsel and responded the belief that Mata was there for a massage was invalid because it had been stipulated that the person who entered intended to commit theft. Because of that stipulation, the People only had to prove beyond a reasonable doubt that Mata entered victim 1's home on July 7, 2008.
2. Analysis
The court did not err in answering the jury's questions. Section 1138 provides that if the jury "desire to be informed on any point of law arising in the case . . . the information required must be given." In such a case, the trial court has a duty to help the jurors understand the legal principles they are being asked to apply. (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
Mata's first contention is that the trial court "never directly answered the jury's question[s]." He claims the gist of the questions submitted by the jury reflected their confusion about whether the stipulations meant defense counsel had conceded their clients' guilt or had merely conceded whoever committed the crimes had the requisite intent.
Contrary to Mata's characterization, the record shows the court considered the jury's questions, and properly answered them, fulfilling its duty under section 11 38. The jury's first question sought clarification regarding the stipulations about the element of intent. The court asked the jury to refine its initial question, which it did by asking for reinstruction on what a stipulation is and how it could be used, as well as asking if stipulations are "facts?" The court answered the reformulated question by summarizing the relevant paragraph of CALCRIM No. 222. The court's answer properly, and thoroughly explained the legal effect of a stipulation.
When the jury came back with yet another question regarding the effect of the stipulation as it related to count 5, the court explained the stipulation meant the prosecution only had to prove that Mata entered the victim's home, not that he entered with the intent to commit theft. Again, this was a correct statement of the law.
Finally, the jury asked if the stipulation invalidated its belief that Mata may have entered the home simply to get a massage from (or have sex with) victim 1. In response, the court said the stipulation negated that belief because the parties had conceded whoever entered the home on that date did so with the intent to commit theft, not for any other purpose. This answer was a proper, correct statement of the law.
Mata's second contention is that the trial court, in one of its responses to the jury, suggested the stipulation applied to both elements of the offense, rather than just the intent element. After stating the prosecution had to prove two things, the court said it first had to prove Mata entered victim 1's home, but then said "And when he entered the home he entered with the intent to commit theft." Mata claims that this statement makes the assumption that Mata did in fact enter victim 1's home, and the court's subsequent clarification that the stipulation was that "whoever entered the home, entered with the intent to commit theft" only added to the jury's confusion.
We disagree. The court's remark, which followed immediately after its statement that the prosecution had to prove Mata entered victim 1's home, does imply a presumption that the prosecution proved that element. However, the court subsequently explained to the jury that only the second element, that of intent, had been stipulated to by counsel and reiterated the prosecution had to prove it was Mata, as opposed to someone else, who entered victim 1's home. Any potential confusion was thus immediately remedied.
Furthermore, if the trial court's responses to the jury's questions acted, as Mata contends, to reduce or eliminate the prosecution's burden of proof, why did the jury find Mata not guilty on count 4? Count 4 was the subject of a nearly identical stipulation regarding intent, and if the jury had been misled into thinking the stipulation meant that Mata was conceding his guilt on all the theft charges, it should have convicted him on count 4, as well. Instead the jury acquitted him on that charge. It seems clear the trial court's responses to the juror's inquiries were sufficient to resolve their initial misunderstandings and allowed them to properly apply the stipulations in their deliberations.
F. Mata's claim of ineffective assistance of counsel
Mata contends that if the court finds that he forfeited his objections to the trial court's responses to the jury's questions due to his counsel's failure to object below, his counsel provided ineffective assistance.
As discussed above, there is no merit to Mata's claim that the trial court's responses confused or misled the jury in any way, and thus any such objection by his counsel would have been fruitless.
G. Mata's joinder in Creswell's prosecutorial misconduct claim
Mata joins in Creswell's argument regarding the prosecutor's questioning during its cross-examination of Creswell, claiming that the questions regarding the failure to subpoena Creswell's work records improperly shifted the burden of proof to the defense. According to Mata, this improper questioning would have led the jury to ask why Mata also did not produce any work records to show where he was on April 29, 2008.
Mata's trial counsel did not raise the issue of prosecutorial misconduct below and has thus forfeited the claim. (Hill, supra, 17 Cal.4th at p. 820.) Had the issue been raised below, the trial court could have admonished the jury to disregard the questioning and the implication that the defense had the burden of proof.
However, even if the claim were not forfeited, Mata cannot establish prejudice. Based on the totality of the evidence presented at trial, consisting of victim 1's direct testimony about Mata and Creswell assaulting her and burglarizing her home, as well as victim 1's testimony about her second encounter with Mata on July 7, 2008, when he attempted to burglarize her new home, it is not reasonably probable Mata would have been acquitted if the prosecution had not asked Creswell questions about his work schedule for April 29, 2008.
H. Mata's joinder in Creswell's prosecutorial misconduct and ineffective assistance of counsel claims
Mata joins in Creswell's arguments about the prosecutor mentioning that Creswell had prior convictions for burglarizing a motel and that trial counsel was ineffective for failing to raise appropriate objections. Mata does not explain how he could have been prejudiced by the jury hearing that Creswell had been previously convicted of burglarizing a motel room, and we reject his claim that this constituted prosecutorial misconduct. As for his claim of ineffective assistance of counsel, that contention is also without merit because we have found that, even if objections had been raised below to any of the supposed misconduct or error, those objections would have been unfounded. Accordingly, counsel was not ineffective for failing to make frivolous objections.
I. Creswell's petition for writ of habeas corpus
1. Failure to grant Marsden motion
In his petition for writ of habeas corpus, Creswell restates his argument that the trial court erred in failing to grant his Marsden motion when his trial counsel refused to consult with an eyewitness identification expert. As we discussed above, there is no merit to that argument and we again reject it. Trial counsel was acting within his discretion in relying on cross-examination to attack the credibility of victim 1's eyewitness identification of Creswell. Victim 1 testified she first observed Creswell outside her home about two hours before they forced their way into her home on April 29, 2008. She testified Creswell grabbed her by the hair, pulling some out by the roots, and held her down on the kitchen floor for several minutes in the course of the burglary. There was no evidence the lighting in victim 1's home was poor--in fact, victim 1 said the lighting was good--or that her assailants made any attempt to hide their faces from her.
2. Prosecutorial misconduct and ineffective assistance of counsel
Creswell also repeats his claim that the prosecutor committed misconduct by asking on cross-examination if he had prior convictions for burglarizing a motel and by implying that it was Creswell's burden to produce work records to corroborate his location on April 29, 2008. In that same vein, he contends his counsel was ineffective for failing to object to the prosecutor's misconduct. As we have explained at length above, the prosecutor's conduct did not "infect[] the trial with such unfairness as to render the subsequent conviction a denial of due process, or involve[] deceptive or reprehensible methods employed to persuade the trier of fact." (Avila, supra, 46 Cal.4th at p. 711.) Furthermore, even if the prosecutor did commit misconduct, Creswell cannot establish prejudice since it is not reasonably probable Creswell would have obtained a more favorable result absent the misconduct.
Because there was no real misconduct to complain of and even if there were, Creswell cannot show he was prejudiced thereby, the failure of Creswell's counsel to object did not amount to ineffective assistance of counsel.
3. Ineffective assistance of appellate counsel
Creswell's final argument is that he has been deprived of effective assistance of appellate counsel because this court denied his section 1241 application for ancillary funds to retain an eyewitness identification expert to review the evidence in this case and opine on whether victim 1's selection of Creswell in a physical line up conducted at the county jail.
a. Relevant facts and procedure
On October 21, 2010, shortly after filing Creswell's opening brief on appeal, Creswell's appointed appellate counsel applied for funds to retain an eyewitness identification expert to review the evidence relating to victim 1's identification of Creswell and demonstrate the trial court erred in denying his Marsden motion. According to this application, appellate counsel contacted two such experts and "described the case and [victim 1]'s testimony as outlined in the statement of facts." These experts told appellate counsel that they would require additional documentation for review, but the "case presented factors that merit consideration on [Creswell]'s behalf."
This court denied the application on January 6, 2011, and the California Supreme Court denied Creswell's petition for review of that decision on February 23, 2011.
b. Analysis
Section 1241 provides, as follows:
"In any case in which counsel other than a public defender has been appointed by the Supreme Court or by a court of appeal to represent a party to any appeal or proceeding, such counsel shall receive a reasonable sum for compensation and necessary expenses, the amount of which shall be determined by the court and paid from any funds appropriated to the Judicial Council for that purpose."
This statute is analogous to section 987.2 providing for compensation to counsel appointed to represent indigent defendants before the trial court. Pursuant to section 987.8, subdivision (g)(1), "legal assistance" provided to indigent defendants at trial includes, "legal counsel and supportive services, including, but not limited to, medical and psychiatric examinations, investigative services, expert testimony, or any other form of services provided to assist the defendant in the preparation and presentation of the defendant's case." The right to such ancillary services extends to indigent defendants on appeal. (In re Ketchel (1968) 68 Cal.2d 397, 398, 400-401.) This is so, despite the fact that the scope of inquiry on appeal is limited to the record, because such services could assist appellate counsel in gauging whether trial counsel had provided effective assistance and could lead to other viable grounds to collaterally attack the defendant's conviction. (Id. at p. 401.)
However, such ancillary services are to be provided only when reasonably necessary, and an application will not be granted in the absence of such a showing. (Puett v. Superior Court (1979) 96 Cal.App.3d 936, 939.) No such showing was made here. As discussed in the sections above dealing with Creswell's direct appeal, the trial court was asked to consider whether Creswell was entitled to substitute counsel because counsel made the tactical choice not to consult an eyewitness identification expert. The trial court inquired into the reasons behind counsel's decision and found that decision to be reasonable under the circumstances of the case, given victim 1's testimony that she had ample opportunity to observe Creswell on two separate occasions, with more than ample lighting. Simply because appellate counsel has spoken to two eyewitness identification experts who, based on appellate counsel's description of the case and summary of the facts, stated they would be willing to review the evidence, does not make their services "reasonably necessary" to the presentation of Creswell's case on appeal. Accordingly, this court's denial of Creswell's application for expert fees does not amount to ineffective assistance of appellate counsel.
4. Cumulative error
Creswell's final argument is that even if the various errors described above do not rise to the level of reversible error individually, the cumulative effect of those errors is sufficiently prejudicial to warrant reversal. We disagree. As we have noted, there was no Marsden error, and to the extent the prosecutor's questions were improper, the totality of the evidence weighed so heavily against Creswell, it is not reasonably probable that Creswell would have obtained a better result even if the prosecutor had not engaged in the claimed misconduct. Since appellate counsel failed to show that engaging eyewitness experts was reasonably necessary to argue Creswell's case on appeal, this court's denial of his application for expert fees does not amount to ineffective assistance of appellate counsel. Accordingly, this case is not one where the whole of the errors exceeds the sum of the individually nonprejudicial components. (Hill, supra, 17 Cal.4th at p. 845.)
III. DISPOSITION
The judgment as to Mata is affirmed.
The judgment as to Creswell is reversed and the matter is remanded to the trial court with directions to conduct a hearing on the prior conviction allegations contained in the information. Once the trial court enters its findings on those allegations, it may resentence Creswell on counts 1, 7, 9 and 10.
Creswell's petition for writ of habeas corpus is denied.
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.