Opinion
A155735
09-24-2019
THE PEOPLE, Plaintiff and Respondent, v. MARIO ALBERTO OCHOA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. CR949379)
A jury convicted defendant of possession of a firearm and ammunition within 10 years of a specified misdemeanor. Defendant contends his conviction must be reversed because the trial court erred in allowing evidence of a portion of his statement to a police officer without the requisite Miranda warnings, and the prosecutor improperly vouched for the testifying officer's credibility during closing arguments. We affirm.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
I. FACTUAL AND PROCEDURAL BACKGROUND
Officer Mark Harden of the Clearlake Police Department responded to a call regarding a gunshot victim at the local hospital. Harden contacted defendant who was lying on a bed in one of the emergency rooms. Harden observed "a black residue or burn" on defendant's wound, located on his inner right thigh. During questioning, defendant admitted at the time of the incident, he had a concealed gun in his waistband that discharged accidentally, striking him in the leg.
We will describe in more detail the circumstances leading up to defendant's admission he shot himself when we discuss whether Harden was required to give defendant Miranda warnings.
The Lake County District Attorney filed an information charging defendant with unlawfully owing, possessing, and having custody and control a firearm (Pen. Code, § 29805) and unlawfully owning, possessing, and having control of ammunition and reloaded ammunition (id., § 30305, subd. (a)(1).)
A jury found defendant guilty of both counts, and the trial court sentenced him to two years in prison.
II. DISCUSSION
Defendant raises three issues on appeal. First, pursuant to Miranda, supra, 384 U.S. 436, he contends the trial court erred in denying his motion to suppress his admission he shot himself. Second, he contends the prosecutor during closing argument improperly vouched for the testimony of Officer Harden. Finally, even assuming his counsel forfeited his vouching claim by failing to object, defendant was denied effective assistance of counsel. A. Denial of Defendant's Motion to Suppress His Admission He Shot Himself
1. Background
The trial court held a hearing outside the presence of prospective jurors to address defendant's motion to exclude his admission he shot himself on grounds the statement was involuntary and taken in violation of Miranda.
Harden, a 17-year police officer, testified he responded to the hospital in Clearlake regarding a gunshot victim. Upon his arrival, Harden spoke to Leonard Franklin. After receiving a call from defendant, Franklin stated, he went to the scene of the shooting where he found defendant sitting inside his vehicle. Defendant's pants were down with what appeared to be a gunshot wound on his inner right thigh tied in a tourniquet. Because defendant told Franklin someone had shot him, he brought defendant to the emergency room.
Thereafter, Harden located defendant in one of the rooms in the emergency department, "conscious," lying on a bed. Believing defendant was the victim of an assault, Harden wanted to speak with him. Harden asked defendant how he was feeling, and defendant responded he had taken some medication for his pain. When Harden first spoke with defendant his "body cam" was on. Approximately 30 seconds into his conversation with defendant, however, he turned off the body cam because before he questioned defendant, he wanted to ask the nursing staff a question. Harden testified: "And I also had a trainee with me at the time. So I was not entirely certain what I was going to do, but it wasn't—didn't need to be recorded for the purposes of this case. And I subsequently forgot to turn it back on when I went in the room." Harden also indicated he is required to activate the body cam if he is involved in an "enforcement action or proactive policing," otherwise it is within his discretion. Using a body cam in a hospital to record conversations with nurses, doctors, and staff, Harden thought, was "probably not appropriate," since these conversations had nothing to do with the investigation.
Harden was not 100 percent certain why he turned off the body cam. It appeared to him that he "had something else in mind" he wanted to do before interviewing defendant.
When he began speaking with defendant, he did not read him his Miranda rights because, according to Harden, defendant "was not detained," "was not under arrest," and he did not believe defendant was "a suspect in a crime." Harden explained he was there "for the sole purpose of determining whether [defendant] was a victim of a crime or not." Initially, defendant told Harden he was driving alone in his vehicle when it made a noise. This noise caused him to pull over and stop the vehicle. He then went under the rear of the vehicle, and while underneath, two Black male adults drove by and shot him in the leg.
As this was a serious allegation, Harden felt he needed to see the injury. He had hospital staff remove the bandage from defendant's leg. At the location of the wound, the inner right thigh, Harden saw discoloration of the skin, which appeared to have been caused by burning from gunpowder. Harden observed, "it appeared to have been like a downward trajectory." After viewing the injury, Harden felt, based on defendant's description, "it wasn't possible," and his statement was "so ridiculous, it wasn't plausible." Harden then questioned defendant further. The first part of defendant's story was similar—he was driving his vehicle when it made a noise, causing him to exit, and go underneath it to see what was causing the noise. But unlike his initial description of the shooting, defendant admitted he had a firearm concealed in his waistband that, when he went to adjust it, accidently discharged striking him in the leg.
Significantly, at that time Harden spoke with defendant, he did not know if defendant had a criminal record or prior convictions and had not attempted to "run his criminal record" because he "had no cause to" do so. Harden explained he had "two conflicting reports": one, that defendant was the victim of a crime and, the other, that defendant had accidentally shot himself. Because Harden had not established defendant committed a crime other than negligently shooting himself, Harden did not give defendant his Miranda rights.
Following his contact with defendant, Harden went to the communications center to have a records check done which includes a criminal history. He reviewed defendant's criminal history, and for the first time, discovered defendant had a misdemeanor conviction for domestic violence which prohibited him from possessing a firearm. Instead of going back to the hospital, however, Harden wrote a report.
Defendant testified he was returning from visiting his family when his truck began "making noises underneath." He stopped to look underneath at which point he heard "somebody passing by in a car." He heard "gun blasts" close to him but did not "see the person." Because he had been shot, he called his friend who picked him up and transported him to the hospital. He did not call 911. Defendant did not remember Harden or making any statements. When defense counsel asked defendant if he could recall what he said regarding what had happened to him, however, defendant responded, "Yes. I remember saying that I had shot myself. No, I don't remember. Clearly." Defendant testified that while he was at the hospital, he was in "a lot of pain" and believed he was given an injection. After receiving the injection, defendant stated he felt dizzy and did not feel like himself, though he was conscious. Defendant stated he spoke and understood "[a] little" English but testified with the assistance of a Spanish language interpreter.
The trial court denied defendant's motion to suppress his admission to Officer Harden. To summarize the court's detailed explanation, the court first observed the "questioning or interrogation" was in the hospital while defendant was in a bed. There was no "objective indicia of arrest"; defendant was not formally arrested, "whether by statement or by cuffing or any other type of activity or conduct by the officer." The officer's contact with defendant was minimal, "a matter of minutes at the very most." What began as a conversation with the victim of a crime, the court pointed out, morphed into what Harden thought involved an accident. Though the officer initiated the encounter, his demeanor was not "overbearing." Overall the "tenor" of the interview amounted to Harden questioning defendant as a witness. It did not appear to the court that Harden was "dominating the encounter." He never told defendant he was under arrest or in custody or he was not free to leave. But the court noted that "practically, defendant was being treated, so he wasn't going to go anywhere. He was never told he was free to go." Nonetheless, the court next noted there were no physical restraints, and no weapons were drawn. The court also stated it did not seem the officer was "particularly aggressive or confrontational or accusatory throughout." And Harden never arrested defendant; he merely submitted the report.
2. Analysis
Defendant contends the trial court erred in denying his motion to suppress his statements to Officer Harden in the hospital. Specifically, he contends the officer's interview became a custodial interrogation after he disbelieved defendant's initial explanation of the gunshot wound—that unknown persons had shot him as he lay underneath his vehicle—requiring the officer to give Miranda warnings before questioning him further. We disagree. Defendant was not in custody for purposes of Miranda.
" 'In reviewing the trial court's denial of a suppression motion on Miranda and involuntariness grounds, " ' " we accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained." ' " ' " (People v. Jackson (2016) 1 Cal.5th 269, 339.)
"Custodial interrogation has two components. First, it requires that the person being questioned be in custody. Custody, for these purposes, means that the person has been taken into custody or otherwise deprived of his freedom in any significant way. [Citation.] Furthermore, in determining if a person is in custody for Miranda purposes the trial court must apply an objective legal standard and decide if a reasonable person in the suspect's position would believe his freedom of movement was restrained to a degree normally associated with formal arrest." (People v. Mosley (1999) 73 Cal.App.4th 1081, 1088 (Mosley).) "The totality of the circumstances surrounding an incident must be considered as a whole." (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403.) Objective indicia of custody for Miranda purposes includes "(1) whether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of the questioning." (People v. Forster (1994) 29 Cal.App.4th 1746, 1753.) "Additional factors are whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect's freedom of movement during the interview, and whether police officers dominated and controlled the interrogation or were 'aggressive, confrontational, and/or accusatory,' whether they pressured the suspect, and whether the suspect was arrested at the conclusion of the interview." (Pilster, at pp. 1403-1404.)
"The second component of custodial interrogation is obviously interrogation. For Miranda purposes, interrogation is defined as any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response." (Mosley, supra, 73 Cal.App.4th at p. 1089.)
In Mosely, law enforcement was faced with an analogous situation of determining just how the defendant was shot. While investigating a shooting outside of a market, a deputy sheriff spoke with a witness who stated he heard shots and observed a tan Buick Skylark traveling southbound in the number two lane and a dark-colored car traveling in the number one lane. The passenger of the dark car was shooting at the Skylark. After the Skylark crashed into a light pole, the defendant got out of the Skylark, and joined another man who had a gun. The defendant's arms appeared to be wounded. (Mosley, supra, 73 Cal.App.4th at pp. 1084-1085.) Deputy Sheriff Nee responded to a radio call for assistance at the scene of the shooting. Nee then received information a gunshot victim was being treated about a mile away. Nee and his partner transported the witness to the location where the wounded man was being treated to determine if this man was the same person the witness had seen jump out of the Skylark. Nee was informed by other deputies that the wounded man was being treated in the ambulance. Nee entered the ambulance where he saw the defendant, with a bleeding left arm, on a gurney being treated by paramedics. The deputy asked the defendant " 'what had happened to him, how he had been shot.' " (Id. at p. 1085.) The defendant said he was seated on a bus bench and heard gunshots. When he walked to the corner to see what was going on, a Mustang sped toward him, and one of the passengers began shooting at him, hitting him in the left forearm. (Id. at pp. 1085-1086.) Nee noticed the defendant's belt had three small buckles each with a letter on it. Because he recognized the belt letters symbolized the Palm and Oak Gangster Crips, he asked the defendant about the buckles. The defendant said he had been a Palm and Oak member but had quit because he had been shot a week earlier by a Mob Piru gang member. The witness then identified the defendant as the man he saw jump out of the Skylark. (Id. at p. 1086.)
Analyzing the indicia and factors delineated above, the court in Mosley held the defendant was not in custody within the meaning of Miranda while he was being treated by paramedics in the ambulance. "Any restraint of defendant's freedom of action was caused by the need to treat his gunshot wound, which was still bleeding and was actively being treated during the interview. He had not been placed under arrest because the police did not know what had happened that caused him to be shot. If he was a victim of a shooting they needed information to put out a broadcast on his assailants. They knew that two shootings had occurred, but they did not know at the time of the interview what started the shooting, who was involved or even if the two shootings were related to each other." (Mosley, supra, 73 Cal.App.4th at p. 1091.) The court also noted the interview was in the presence of medical personnel, the questioning was not accusatory or threatening, the defendant was not handcuffed, no guns were drawn, and the defendant was about to be transported to a hospital and not to a police station. "Based on all of the circumstances present," the court found, "a reasonable person in defendant's position would not have believed he was in police custody and . . . no Miranda rights were required prior to questioning." (Ibid.)
Defendant attempts to distinguish Mosley by claiming there was a point in the questioning where the nature of the questioning changed once Officer Harden determined defendant was not being truthful. At that point, even if Harden subjectively had no interest in arresting defendant for making false statements, defendant asserts, a reasonable person in defendant's position could reasonably believe he was under arrest for making a false report. (Pen Code., § 148.5.) However, defendant overlooks the fact that Miranda's concept of custody excludes general on-the-scene investigative questioning such as occurred in the instant matter. Miranda's holding addressed "incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights." (Miranda, supra, 384 U.S. at p. 445.) Miranda explained, "It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in- custody interrogation is not necessarily present." (Id. at pp. 477-478.) Though defendant maintains that unlike Mosley, there is a point at which the nature of the questioning here changed after Harden observed defendant's wound and suspected he was being untruthful, defendant overlooks the fact that the deputy sheriff in Mosley asked further questions after observing the gang letters on the defendant's belt buckles.
In a further attempt to distinguish Mosley, and without citation to any relevant case authority, defendant argues "there is a significant difference between being questioned while being treated by paramedics at the scene and being questioned in a hospital bed." The presence of medical personnel, according to defendant, may help to "defuse potential pressure that may make the interrogation custodial," and the record here does not indicate hospital staff was present, except when the officer asked for someone to remove defendant's wound dressing. Moreover, defendant argues, "the situation in Mosley was temporary [and] [a] reasonable person in that defendant's position could expect to be transported to the hospital shortly, thus interrupting the interrogation." These proffered distinctions, however, are speculative and based on unsubstantiated assumptions that the presence of medical personnel may diminish pressure contributing to a custodial environment, that a reasonable person in the defendant's situation in Mosley would have expected the police officer to terminate questioning once the ambulance arrived at the hospital, and that either the paramedics would have stopped the officer's questioning in order to begin transportation to the hospital or alternatively the officer would not have accompanied the defendant in the ambulance and followed him into the emergency room. Nothing in Mosley supports any of these speculative distinctions. While defendant attacks the federal cases cited in Mosley, he does not contend Mosley was wrongly decided, and we thus rely on Mosley in its own right.
In a strikingly similar case to the present matter, U.S. v. Jamison (4th Cir. 2007) 509 F.3d 623 (Jamison), the defendant, Eric Jamison, accidentally shot himself near the groin. Two men drove him to the emergency room at the University of Maryland Hospital where three on-duty police officers, congregated at the hospital entrance, saw Jamison and the two men arrive. After the two men exited the vehicle, they told the officers a gunshot victim was in the back seat. When the officers opened the back door, Jamison stated, " 'C.O., C.O., I've been shot, man, I've been shot.' " (Id. at p. 625.) Shortly after Jamison was taken into the treatment room, Officer Maurice Avance asked to have brown bags placed over Jamison's hands. (Id. at p. 626.) While nurses cut Jamison's clothing, he was lying prone on a gurney. Hospital staff identified an entrance wound near his groin and an exit wound on his outer thigh. The staff then tended to the wounds and inserted an I.V. line into his arm. As Jamison was being treated, Avance asked him to recount what had happened. Initially, Jamison told the officer he was attempting to buy some drugs on a specific street corner when an unknown person shot him. He said he then flagged down a car with two men in it, and they drove him to the hospital. (Ibid.)
After Avance left the room, he entered the hallway where he briefed Detective Macer, a nonfatal-shootings investigator, weighing 280 pounds and standing six feet four inches tall. The two officers returned to Jamison's room. (Jamison, supra, 509 F.3d at p. 626.) The detective asked Jamison to describe how he was shot. This time Jamison stated he was located on a different corner using, rather than buying, drugs when someone attempted to rob him and then shot him. Recognizing the discrepancies, the detective asked Jamison to once again describe the shooting. He confirmed the second account. (Ibid.) Macer next looked at Jamison's injury, observing a downward trajectory from the entry wound to the exit wound. Because the injury was inconsistent with Jamison's account of the shooting, Macer examined his clothing, finding no bullet holes. Following Jamison's repeated story that he was shot while using drugs, the detective explained that his observations seemed inconsistent with Jamison's story. Only then did Jamison admit he shot himself with a handgun and threw it away. (Ibid.) Several hours later, Macer returned to the station house, researched Jamison's record, and discovered he was a convicted felon. (Id. at p. 627.)
The court in Jamison found, "Jamison's freedom to terminate the interview was curtailed primarily by circumstances resulting from his injury and hospital admittance rather than by police restraint." (Jamison, supra, 509 F.3d at p. 625.) Furthermore, the court determined, "As Jamison's questioning progressed and his accounts began to reveal inconsistencies, a reasonable person would expect diligent investigators to ask for clarification." (Id. at p. 631.) And, "after providing shifting explanations of where in the city the shooting occurred, a reasonable person would expect the police to question him further, lest they expend energy investigating false leads." (Id. at p. 632.) Relying on Mosley, as "illustrative," the court further observed, "Just as police investigation concurrent with emergency medical treatment was found non-custodial when the defendant in Mosley was treated as a mere victim, so too do we find Jamison's questioning to be precisely what would be expected were Jamison merely a victim." (Jamison, at p. 632.)
In sum, the Jamison court concluded, Jamison "was primarily restrained not by the might of the police, but by his self-inflicted gunshot wound, the medical exigencies it created, and the investigation he initiated." (Jamison, supra, 509 F.3d at p. 632.) And "a reasonable person in Jamison's circumstances would not have found himself restrained by the police. Instead he would have 'fe[lt] free to decline the officers' requests or otherwise terminate the encounter.' " (Ibid.)
In this case, like the officers in Jamison, Officer Harden responded to a report of a gunshot wound victim who had been brought to the hospital, questioned him in the emergency room, and never placed defendant under formal arrest. So too, as in Jamison, once Harden explained to defendant that his initial account that he had been shot by someone else was inconsistent with the downward trajectory of the wound, defendant admitted he had shot himself. And significantly, neither the officers in Jamison nor Officer Harden learned the wounded individual had prior convictions until later, after they had left the hospital and returned to their respective stations. In short, just as in Jamison, defendant here, was not primarily restrained by Harden, but by his self-inflicted wound, the medical emergency it created, and the investigation he initiated.
Because we find Mosley and Jamison persuasive, we conclude a reasonable person in defendant's circumstances would not have found himself restrained by police, and as a result, Officer Harden was not required to advise defendant of his Miranda rights. B. Vouching
1. Background
During closing argument, defense counsel attempted to undermine Officer Harden's credibility: "So the other thing you have to consider about him is also he's—he's got a dual role in this case. I mean, he's not somebody that they just found, you know, and said, 'Well, I want to you to look at this situation and just give me your opinion on what you think about it.' He's also the investigate—the lead investigator in the case. I mean, you know, this isn't a lawsuit where he gets some sort of reward if they win or something. But I think it's fair to say that a police officer has some sort of personal stake in, if he believes somebody has committed a crime, seeing that person convicted usually. You know, they're human beings too. And so we're going to talk later about biases. But, again, there's—there is an inherent bias. You know, sometimes, we—when we—we're trying to—sort of trying to achieve a goal and his goal is, you know, him catching people who he thinks are criminals, sometimes that can influence the way we view things, okay. Sometimes that can influence the way we look at a situation." Defense counsel then commented on Harden's failure to turn on his body camera as he interviewed defendant: "And he says, 'Hold on a second,' and he turns off his camera. And you know, the lingering question is why the heck would he do that. And I think that, you know, the—we can agree that the officer's answers were not super definitive on this point. You know, he kind of came in and said, 'Well, I might have—might have, you know, had something else to do that didn't involve this or that I didn't want to. And then I just can't tell you why I didn't turn it back on.' "
In response to defense counsel's argument undermining Harden's credibility, during rebuttal argument, the prosecutor asserted the officer had no motivation to make up defendant's statements: " First of all, there's . . . nothing suspicious about the recording or lack of recording here. It was simply an oversight by Officer Harden. He basically admitted that. He turned it on. He intended to record it. He turned it off for some reason which he can't remember and that [sic] he forgot to turn it back on. Why would—the alternative is—that [defense counsel] suggests is basically that there was an ulterior motive that he did not record this interview with what Officer Harden thought at the time was a victim of a gunshot wound. Why would Officer Harden, with a 17-year career as a peace officer, make up statements that the defendant said, just make them up? Why would he—what motivation could he possibly have to not record the interview so that he could make up statements the defendant said that—say that the defendant said things but he didn't really say them? [¶] At the time, he—you can see a scenario where that could happen where you have a suspect of a crime, a violent crime, let's say, where, you know, the officer really wants to be able to get admissions from a defendant. But at the time, Officer Harden didn't think that this was a defendant or would ever be a defendant. He—he approached Mr. Ochoa as a victim and then as basically an accidental shooting but not a crime. So this whole thing about there's a partial recording but it's only the first 30 seconds and then he turned off the camera is really a red herring here. There's no motivation for Officer Harden to have done that on purpose." (Italics added.)
The prosecutor went on to explain defendant's second truthful statement was corroborated by the physical evidence, and thus there was no reasonable explanation other than defendant shot himself, as he admitted. The only reasonable scenario, according to the prosecutor, is that "Mr. Ochoa admitted that he shot himself with a gun that he had. He describes the gun in detail that he had, the caliber, the color, the type of firearm it is. And that's not something that Officer Harden would have any motivation to just make up that the defendant said that." (Italics added.)
2. Analysis
Defendant contends the prosecutor committed prosecutorial misconduct, requiring reversal, because he vouched for the credibility of a law enforcement witness. And even assuming trial counsel failed to adequately preserve the issue by timely objecting, defendant complains, he was denied effective assistance of counsel. We disagree because the prosecutor did not vouch for Officer Harden.
Because defendant's trial counsel failed to raise an objection, preliminarily, we note defendant has forfeited his vouching claim. " ' "To preserve a claim of prosecutorial misconduct for appeal, a defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the improper argument." ' " (People v. Adams (2014) 60 Cal.4th 541, 568-569, citing People v. Linton (2013) 56 Cal.4th 1146 1205.) However, defendant's attempt to salvage his forfeited objection by styling it as a claim of ineffective assistance of counsel fails.
To establish a claim of ineffective assistance of counsel, defendant must show (1) trial counsel's performance was deficient when measured against the standard of a reasonably competent attorney, and (2) the deficient performance caused prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 697; People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.) To demonstrate counsel's deficiencies resulted in prejudice, defendant must show a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, at p. 694.) Defendant here has failed to establish he received ineffective assistance of counsel.
"A prosecutor may fairly comment on and argue any reasonable inferences from the evidence. [Citation.] Comments on the state of the evidence or on the defense's failure to call logical witnesses, introduce material evidence, or rebut the People's case are generally permissible. [Citation.] However, a prosecutor may not suggest that 'a defendant has a duty or burden to produce evidence or a duty or burden to prove his or her innocence.' [Citations.] [¶] A prosecutor may not suggest the existence of ' "facts" ' outside of the record by arguing matters not in evidence. [Citation.] Nor may a prosecutor suggest that matters outside the record establish the veracity of a witness; however, the prosecutor may assure the jury of a witness's apparent honesty or reliability based on matters in the record. [Citation.] It is also improper for a prosecutor to resort to personal attacks on the integrity of opposing counsel." (People v. Woods (2006) 146 Cal.App.4th 106, 112-113.)
As quoted above, the prosecutor commented during rebuttal that there was no motivation for Harden to have purposely failed to record defendant's statements, or to have fabricated them. Relying on People v. Rodriguez (2018) 26 Cal.App.5th 890 (Rodriguez), defendant argues these comments constituted misconduct involving impermissible vouching for the credibility of Harden, the crucial and only prosecution witness in this case. After defense counsel in Rodriguez attacked the credibility of the officers who testified for the prosecution, in rebuttal, the prosecutor offered some reasons why the officers were credible witnesses arguing officers with 17 and 20 years of experience would not put their entire careers at risk by lying and subjecting themselves to prosecution for perjury. The appellate court held this rebuttal argument was improper: "[W]e hold that . . . this case presents an example of improper vouching. The prosecutor's argument that the officer witnesses would not lie because of the danger to their careers and the risk of prosecution for perjury relied on facts not in evidence. The impact of the prosecutor's remarks depended on the truth of a number of propositions, none of which come close to being self-evident: that law enforcement officers of long tenure are more likely to be honest than other people; that they can firmly expect to lose their jobs if they lie or exaggerate when testifying against those accused of crime; that they face a grave risk of prosecution for perjury by the very prosecutors who have presented their testimony if they do this; or that these factors are so powerful in the minds of officers that they would feel no motivation to lie in order to maximize the punishment of those who attack them. There was, of course, no evidence at trial that was relevant to any of these notions." (Id. at p. 907.)
Defendant also cites similar holdings regarding vouching (see People v. Woods, supra, 146 Cal.App.4th at p. 114 [prosecutor asked the jury rhetorically whether the police who worked on the case "are going to risk their careers and their livelihood"]; U.S. v. Combs (9th Cir. 2004) 379 F.3d 564, 568 [prosecutor argued the jury would have to believe a special agent would flush his 10-year career down the toilet and get fired for perjuring himself]; and U.S. v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142, 1146 [prosecutor argued the officers had no reason to lie and risk losing their jobs, pensions, and livelihoods, and risk being prosecuted for perjury].)
Contrary to Rodriguez, the court in People v. Caldwell (2013) 212 Cal.App.4th 1262, under similar circumstances, reached the opposite conclusion. In Caldwell, the appellate court found no misconduct when the prosecutor argued, " 'Why would [detectives] put their career on the line for this case?' . . . 'What makes this case so special that these officers would perjure themselves? What do they have against Mr.—poor Mr. Caldwell? Nothing. . . . There is no reason for those officers to lie.' " (Id. at p. 1270.) In rejecting the defendant's claim the prosecutor impermissibly vouched for the detectives, the court concluded the prosecutor's statements were in response to the defense counsel's argument that the detectives lied about the procedures of the photo lineup. And "[t]his response to defense arguments did not amount to the prosecutor's personal assurance of the officers' veracity or place the prestige of the district attorney's office behind the officers, and we do not find a reasonable likelihood the jury understood the prosecutor's rebuttal in those ways." (Ibid.)
Though there is a split in authority, we need not take a side in the conflict, because in contrast to those cases, the prosecution here never raised the specter of Officer Harden losing his career or being prosecuted for perjury. The prosecutor merely argued the officer had no motive for failing to record the conversation or to make up defendant's statements, leaving it to the jury to evaluate Harden's credibility. While defendant suggests "the implication in mentioning Officer Harden's 17 year career was that police officers, could 'firmly expect to lose their jobs if they lie or exaggerate when testifying against those accused of crime,' " defendant fails to explain why the jury would draw this inference in the absence of further prosecutorial assertions, as in Rodriguez, that officer could face the risk of losing his job or risk prosecution for perjury. This case is further distinguishable from Rodriguez because the prosecutor here simply pointed out the lack of evidentiary basis to assert Harden's bias. The prosecutor focused on Harden's belief he was dealing with the victim of an assault, and emphasized defendant's second statement, admitting he shot himself, coincided with the physical evidence because it was unreasonable to posit that defendant's vertical angle gunshot wound was caused by another person shooting at him as he lay underneath his truck. Accordingly, the prosecutor concluded, "The only reasonable scenario is the one that Mr. Ochoa admitted that he shot himself with a gun that he had. He describes the gun in detail that he had, the caliber, the color, the type of firearm it is."
In sum, because the prosecutor did not commit misconduct during rebuttal argument, defense counsel was not ineffective for failing to object to the prosecutor's comments.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P. J. /s/_________
Banke, J.