Opinion
F086316
06-27-2024
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA JOHAN MOLINA, Defendant and Appellant.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and Ismah Ahmad, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF180204A, Tiffany E. Organ-Bowles, Judge.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and Ismah Ahmad, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SMITH, J.
A jury convicted defendant Joshua Johan Molina of assault with a deadly weapon and attempted murder, committed willfully, deliberately, and with premeditation. Molina was sentenced to 14 years plus 25 years to life.
Molina contends on appeal that the prosecutor misstated the law on premeditation and deliberation in his closing argument and defense counsel was ineffective for failing to object, requiring reversal. The People disagree. We affirm.
PROCEDURAL BACKGROUND
On March 9, 2023, the Kern County District Attorney filed an amended information charging Molina with attempted murder (Pen. Code, §§ 664; 187, subd. (a); count 1) and assault with a deadly weapon (§ 245, subd. (a)(1); count 2). As to count 1, the information alleged the offense was committed willfully, deliberately and with premeditation (§ 189) and Molina personally used a deadly or dangerous weapon, a knife (§ 12022, subd. (b)(1)). As to both counts, the information alleged Molina personally inflicted great bodily injury (§ 12022.7).
Undesignated statutory references are to the Penal Code.
As to both counts, the information alleged the following aggravating factors and prior convictions: Molina committed a crime of great violence (Cal. Rules of Court, rule 4.421(a)(1)); Molina was armed with or used a weapon at the time of the crime (rule 4.421(a)(2)); the victim was particularly vulnerable (rule 4.421(a)(3)); the manner in which the crime was carried out indicates planning (rule 4.421(a)(8)); Molina engaged in violent conduct that indicates a serious danger to society (rule 4.421(b)(1)); Molina has prior convictions as an adult or sustained petitions in juvenile delinquency proceedings that are numerous or of increasing seriousness (rule 4.421(b)(2)); and Molina served a prior prison term (rule 4.421(b)(3)). Further, the information alleged Molina suffered two prior strike convictions within the meaning of the three strikes law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) and two prior serious felony convictions (§ 667, subd. (a)).
All further rule references are to the California Rules of Court.
A jury found Molina guilty as charged on both counts. A jury also found true as to count 1 that Molina committed attempted murder willfully, deliberately, and with premeditation (§ 189) and Molina personally used a deadly or dangerous weapon. (§ 12022, subd. (b)(1).) As to both counts, a jury found true Molina personally inflicted great bodily injury upon M.S. (§ 12202.7.)
In a court trial, the trial court found true that Molina committed a crime of great violence (rule 4.421(a)(1)); Molina was armed with or used a weapon at the time of the crime (rule 4.421(a)(2)); Molina engaged in violent conduct that indicates a serious danger to society (rule 4.421(b)(1)); Molina has prior convictions as an adult or sustained petitions in juvenile delinquency proceedings that are numerous or of increasing seriousness (rule 4.421(b)(2)); and Molina served a prior prison term (rule 4.421(b)(3)). The court also found true that Molina suffered two prior strike convictions (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) and two prior serious felony convictions (§ 667, subd. (a)).
The parties stipulated to a bifurcated court trial on the prior convictions and aggravating factors.
The court sentenced Molina to an aggregate term of 14 years plus 25 years to life as follows: on count 1, 25 years to life, plus a three-year serious bodily injury enhancement (§ 12022.7, subd. (a)), plus a one-year weapon enhancement (§ 12022, subd. (b)(1)), plus 2 five-year prior serious felony conviction enhancements (§ 667, subd. (a)); on count 2, 25 years to life, plus a three-year serious bodily injury enhancement (§ 12022.7, subd. (a)), plus 2 five-year prior serious felony conviction enhancements (§ 667, subd. (a)), stayed pursuant to section 654.
FACTUAL BACKGROUND
M.K. and M.S. lived together in 2020. On February 16, 2020, M.K. and M.S. went to a friend's apartment to "hang out" and use drugs. There, they met Molina for the first time. After being at the apartment for about two hours, M.K. and M.S. agreed to leave and give Molina a ride home. M.K. drove the car, M.S. sat in the front passenger seat, and Molina sat behind M.S. in the back on the passenger side. M.K. began to drive when Molina asked her to turn into an alley. After turning into the alley, Molina raised up toward the front seat and asked M.S. in her left ear in a whisper, "How's your night going?" M.S. replied, "I'm all right." Molina then started to stab M.S. with a knife.
All further dates are in the year 2020 unless otherwise noted.
During the stabbing, Molina appeared to be using "full force." M.K. and M.S. both asked Molina, "Why are you doing this?" M.K. also offered Molina the car to get him to stop stabbing M.S. M.S. tried to throw her purse at him. Molina said nothing and continued to stab M.S. Molina stabbed M.S.'s face, cheek, and multiple areas of her head. There was so much blood M.S. could not see out of her eye and blood splattered across the top of the car and rear door. M.S. was stabbed about six to seven times.
When M.K. saw that M.S. was being stabbed, she put the car in park. About a second later, once M.K. saw the blood splatter across the car and rear door, she panicked. M.K. then put the car in drive, "locked eyes" with Molina, and when he continued with the stabbing, M.K. undid her seatbelt and jumped out of the car while it was still in drive. M.K. wanted to get out of the car because she thought Molina was going to kill M.S. and then come after her. During this time, Molina continued to stab M.S. Once out of the car, M.K. screamed for help. The car slowly rolled and crashed into a green power box.
When the car crashed, Molina flew forward and dropped the knife. M.S. grabbed the knife with her left hand and got on the floorboard of the car with the knife underneath her. M.S. severed a tendon in her finger because she held the blade so hard. Molina began to hit M.S. on her head with his hands and fists multiple times to get the knife back. M.S. stayed on the floorboard of the car to keep the knife away from Molina. Molina continued to hit M.S.
When he could not get the knife back, Molina got out of the car, stood at the front passenger door, and tried to get the knife from M.S., who was still on the front passenger floorboard. At the end of the alley, a man came out of an apartment with a gun. M.K. told the man that M.S. was being attacked and Molina was trying to kill her. M.K. also told the man to "shoot" Molina. When the man went to the car, Molina backed away. M.K. got back in the car and drove M.S. to the hospital.
DISCUSSION
I. Ineffective Assistance of Counsel Based on the Failure to Object to Prosecutorial Misconduct During Closing Argument
Molina argues the prosecutor committed prejudicial misconduct during closing argument by misstating the law on premeditation and deliberation, thereby violating Molina's federal constitutional right to due process, and defense counsel's failure to object to the prosecutor's misstatement of law constituted ineffective assistance of counsel.
The People argue Molina forfeited any error of prosecutorial misconduct by failing to object at trial. The People also contend Molina's ineffective assistance of counsel claim fails because there was no reason for defense counsel to object considering the prosecutor's statement of the law was proper and, in the alternative, any misconduct during the prosecutor's closing argument was harmless.
We agree with the People. Molina forfeited his claim of prosecutorial misconduct. We further agree with the People that defense counsel did not commit misconduct, and even assuming misconduct, it was harmless. Molina failed to establish ineffective assistance of counsel.
A. Additional Facts
At the close of evidence, the trial court told the jury, "If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions."
The trial court instructed the jury with the law regarding attempted murder and the additional allegation of premeditation and deliberation.
Thereafter, the prosecutor made the following argument:
"Instruction 601 will be provided in the back. It was previously read to you. The length of time someone spends considering to kill is not determinate of whether the attempted killing was deliberate and premeditated. Why is this important? It's important because the law says you do not have to spend hours, days, weeks, months planning to kill someone. The law does not recognize that as a requirement. The length of time, okay, in considering whether to kill someone is not the determinate factor.
"It also states a cold, calculated decision to kill can be reached quickly. You can reach that decision to kill someone with premeditation, deliberation, willfulness. Like this quick.
I'll give you an example. When you are driving home-for example, let's say today. You drove home yesterday. You are seeing in front of you the traffic that is in front of you. You're also cognizant of the traffic behind you, to the left, to the right. Let's say you're approaching a stoplight and you see that stoplight, yellow in color, and you're close to that intersection and in your mind you're thinking, okay, do I have enough time to get through the intersection before it turns red safely? You make that decision. You either make it-you make it in a split second. You either decide, based off the circumstances surrounding you, whether you can make that light safely or you make the decision that you cannot and that is done quick, a calculated decision.
"It's the same thing here. A cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time. The law doesn't require the length of time in considering whether you're going to kill. It's the amount of time or the reflection that you associate with that. This defendant, he reflects a lot. He made his decision before getting into that car he was going to kill her. If not, he wouldn't have armed himself. He wouldn't have voluntarily sat behind her. He wouldn't have whispered in her ear in a very creepy fashion. He wouldn't have stabbed her multiple times. He reflected sufficiently."
Defense counsel did not object to the prosecutor's closing argument.
B. Forfeiture
Generally, "[a] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety." (People v. Thornton (2007) 41 Cal.4th 391, 454.) However, there is an exception to the general rule. "A defendant whose counsel did not object at trial to the alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel." (People v. Lopez (2008) 42 Cal.4th 960, 966, italics added.)
Molina's claim of prosecutorial misconduct is forfeited because Molina failed to make a timely objection and request an admonition. (People v. Sully (1991) 53 Cal.3d 1195, 1248.) However, Molina's ineffective assistance of counsel claim, based on defense counsel's failure to object to the alleged misconduct is cognizable on appeal. (People v. Lopez, supra, 42 Cal.4th at p. 966.)
C. Analysis
An ineffective assistance of counsel claim requires both deficient performance and prejudice, that is, "a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" (People v. Ledesma (2006) 39 Cal.4th 641, 746.) "When defense counsel's reasons are not readily apparent from the record," the Supreme Court held that it "will not assume [counsel] was ineffective unless [the] challenged conduct could have had '" 'no conceivable tactical purpose.'" '" (People v Dickey (2005) 35 Cal.4th 884, 926-927.)
Here, there is nothing in the record which affirmatively shows the reason defense counsel did not object to the prosecutor's statements during closing argument regarding the law on premeditation and deliberation. While" '[a]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel,'" we examine the alleged prosecutorial misconduct at issue here to determine whether defense counsel was ineffective in failing to object to the prosecutor's closing argument. (People v. Williams (1997) 16 Cal.4th 153, 221.) a. Prosecutorial Misconduct
With respect to prosecutorial misconduct under the federal Constitution, the question is "whether the prosecutors' comments 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" (Darden v. Wainwright (1986) 477 U.S. 168, 181.) A "prosecutor who uses deceptive or reprehensible methods commits misconduct even when those actions do not result in a fundamentally unfair trial" under state law. (People v. Cook (2006) 39 Cal.4th 566, 606.) "A criminal prosecutor has much latitude when making a closing argument." (People v. Seumanu (2015) 61 Cal.4th 1293, 1330.) "When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was '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.'" (People v. Centeno (2014) 60 Cal.4th 659, 667.)
Molina claims the prosecutor committed misconduct by analogizing a "split second" traffic decision with the premeditated and deliberate decision to kill, which requires more reflection than an instantaneous decision, and thus misstated the law. Viewed in the context of the prosecutor's whole argument, the traffic analogy was not improper.
The prosecutor used the traffic light illustration to explain the concept of premeditation and deliberation as a weighing of options that can happen very quickly. (People v. Hill (1998) 17 Cal.4th 800, 819 [it is proper for a prosecutor to make assertions of common knowledge or use illustrations based on common experience].) The prosecutor argued the "law does not require the length of time in considering whether you're going to kill" but instead "the reflection .. you associate with that." The statement was consistent with the law. (People v. Houston (2012) 54 Cal.4th 1186, 1216 [premeditation and deliberation does not require an extended period of time, the true test is the extent of reflection]; People v. Stitely (2005) 35 Cal.4th 514, 543 [an attempted murder is "premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse"].)
In Molina's attempt to convince us that the prosecutor misstated the law, Molina cites People v. Avila (2009) 46 Cal.4th 680 (Avila). In that case, the prosecutor used the same "yellow light" analogy. The Supreme Court concluded the argument was proper: "[T]he prosecutor used the example of assessing one's distance from a traffic light, and the location of surrounding vehicles, when it appears the light will soon turn yellow and then red, and then determining based on this information whether to proceed through the intersection when the light does turn yellow, as an example of a 'quick judgment' that is nonetheless 'cold' and 'calculated.'" (Id. at p. 715.) Our Supreme Court explained the prosecutor did not draw an equivalency between premeditated murder and running a red light; it did not suggest the prosecutor's illustration misstated the law regarding premeditation and deliberation; and it did not conclude that, if the prosecutor had drawn a moral equivalency, it would have been error. (Ibid.)
Indeed, the Fourth District has explicitly approved of a very similar yellow light illustration regarding premeditation and deliberation. In People v. Son (2020) 56 Cal.App.5th 689, 698 (Son), the prosecutor made the following statement during closing argument:" 'Rarely do people who kill have a good enough reason for what they did. This [i.e., premeditation] isn't my motive or what I think would be a good idea. It's simply a consideration of consequences and actions.... [¶] Some examples of this are the difference between shooting someone a single time and pulling the trigger a second time. [¶] The decision a person makes when approaching a yellow light as it may be likely to phase red. A weighing of consequences. Am I going to make it? Am I going to be involved in an accident? Am I going to get a ticket? I look to the left. I look to the right. And I go for it.' "
The court in Son found no error in the "yellow light" example provided. The court explained that, "[a]t least in the way the prosecutor framed it, if someone were to go through the decisionmaking process the prosecutor described, the decision to proceed through the intersection would be premeditated." (Son, supra, 56 Cal.App.5th at p. 699.)
Molina's mischaracterization of Avila aside, he asserts that when the prosecutor in Avila stated the"' "the decision to kill is similar, but . . . not . . . in any way . . . the same" '" as deciding to drive through a traffic light, this final comment properly demonstrated to the jury that the decision to kill is very different than a traffic decision. The court in Son rejected the same contention based on Avila, "that it is improper to analogize premeditation to a yellow light unless it is accompanied by the caveat that going through a yellow light is less serious than murder." (Son, supra, 56 Cal.App.5th at p. 699.) The court explained that "[t]he only thing the Avila court said was that the prosecutor did not argue that going through a yellow light is the 'equivalent' of murder," and noted that "[t]he prosecutor in our case did not draw such an equivalence either. It was obviously an analogy." (Id. at pp. 699-700.) We agree with the Son court's analysis. (Ibid.)
Molina further contends the prosecutor misstated the law because the decision whether to drive through a traffic light involves an "instantaneous decision" and "[p]remeditation and deliberation require[ ] 'substantially more reflection.'" We disagree with Molina.
The prosecutor used the traffic light decision to properly illustrate the extent of reflection required to find premeditation and deliberation and to explain that such premeditation and deliberation can occur quickly so long as the defendant has reflected on the decision. This is demonstrated in at least two ways. First, the prosecutor relied on the exact language of the jury instruction on premeditation and deliberation regarding the extent of reflection.
Next, after using the traffic light analogy, the prosecutor reviewed the many conscious decisions and periods of reflection Molina engaged in before and during the attempted murder. (People v. Boatman (2013) 221 Cal.App.4th 1253, 1270 [premeditation and deliberation require evidence that the defendant engaged in reflection and the weighing of considerations].) For example, the prosecutor stated: "This defendant, he reflects a lot. He made his decision before getting into that car he was going to kill her. If not, he wouldn't have armed himself. He wouldn't have voluntarily sat behind her. He wouldn't have whispered in her ear in a very creepy fashion. He wouldn't have stabbed her multiple times. He reflected sufficiently." The prosecutor did not argue that Molina made a "split second" or "instantaneous" decision to kill in this case. We find no reasonable likelihood the jury construed the traffic light illustration in an improper or erroneous manner considering the entire argument. (People v. Harrison (2005) 35 Cal.4th 208, 244 ["When the issue 'focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion' "].)
Moreover, the trial court told the jury to follow its instructions on the law instead of the attorneys' arguments. The court properly instructed the jury with the standard instruction on premeditation and deliberation. Given the court's instruction, Molina cannot demonstrate the prosecutor's argument misled the jury into believing a traffic decision is comparable to the premeditated decision to kill. "The court's instructions, not the prosecution's argument, are determinative." (People v. Mayfield (1993) 5 Cal.4th 142, 179.)
b. Harmless Error
Even assuming the prosecutor misstated the law regarding premeditation and deliberation, the error was harmless. "[W]here a defendant shows prosecutorial misconduct occurred, reversal is not required unless the defendant can show he suffered prejudice." (People v. Fernandez (2013) 216 Cal.App.4th 540, 564.) "Chapman [v. California (1967) 386 U.S. 18], is implicated if the prosecutor's conduct renders the trial so fundamentally unfair that due process is violated. [Citations.] [People v.] Watson [(1956) 46 Cal.2d 818] applies where the prosecutor uses '" 'deceptive or reprehensible methods to attempt to persuade either the court or the jury.'" '" (Ibid.)
The prosecutor's argument did not render the trial so fundamentally unfair that it triggered the Chapman standard because (1) the trial court properly instructed the jury with the standard instruction on premeditation and deliberation; (2) the court told the jury to follow its instructions on the law rather than rely on the attorneys' arguments; and (3) the evidence is strong in showing that Molina acted with premeditation and deliberation instead of on a rash impulse. (Cf. People v. Hendrix (2022) 13 Cal.5th 933, 942-943 [the failure of the court to properly instruct the jury on the law did not withstand harmless error under Chapman ].)
Prior to the stabbing, Molina carried a knife; Molina sat behind M.S. in the car; Molina asked M.K. to turn into an alley; and Molina asked M.S. how her night was going. During the stabbing, Molina was unresponsive to M.K. and M.S.'s repeated pleas to stop. M.K. "locked eyes" with Molina to get him to stop, but he continued to stab M.S. Molina stabbed M.S. about six or seven times using full force, only stopping when he lost control of the knife. Even after Molina lost control of the knife, Molina continued to attack M.S. by repeatedly hitting her.
Nor is it reasonably probable that a more favorable result would have been reached absent the alleged objectionable argument under Watson, supra, 46 Cal.2d 818. (See People v. Beltran (2013) 56 Cal.4th 935, 954-956 [any error in prosecutor's closing argument to the jury suggesting an incorrect standard regarding provocation on murder charge was not prejudicial under Watson harmless error where the trial court provided a correct statement of law, and defendant's evidence was weak and contradicted].)
D. Conclusion
Because we find no prosecutorial misconduct, and any misconduct was harmless, we also find that Molina's ineffective assistance of counsel claim fails. There is nothing in the record to prove that defense counsel could not have had a valid tactical reason for not objecting. (See People v. Dickey, supra 35 Cal.4th at pp. 926-927.)
By declining to object, we assume Molina's counsel fairly determined the prosecutor's closing argument was permissible and not subject to objection. (People v. Seumanu, supra, 61 Cal.4th at p. 1331.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: POOCHIGIAN, Acting P. J., DE SANTOS, J.