Opinion
G061392
09-25-2023
THE PEOPLE, Plaintiff and Respondent, v. THOMAS DYLAN RICHESON, Defendant and Appellant.
Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 21HF2020 Terri K. Flynn-Peister, Judge. Affirmed.
Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
GOETHALS, J.
Thomas Dylan Richeson appeals from the judgment convicting him of assault with a deadly weapon. The conviction arose out of an incident during which Richeson broke into a residence and confronted the occupant-who resided in the unit- while armed with a chainsaw.
Richeson does not claim the evidence is insufficient to support the judgment against him. Instead, he argues the judgment must be reversed because the prosecutor engaged in several acts of misconduct during closing argument. And he contends the trial court erred by denying his motion for a mistrial based on the same alleged misconduct.
Richeson's specific complaints are that the prosecutor improperly (1) argued to the jury that it was common knowledge 7-Eleven stores are always open, to rebut Richeson's claim that a nearby store was closed at the time of the incident, (2) offered his "personal opinion" about Richeson's guilt, and (3) invited the jury to convict Richeson based on the "external standard" of what hypothetical "law-abiding citizens" would have done if faced with the circumstances of the case. While the first assertion has some merit-we agree it is not necessarily true that all 7-Eleven stores are always open-the argument is a red herring. The incident in this case occurred before 11:00 p.m., and as Richeson himself points out, the very name of the business suggests they are open until at least 11:00 p.m. So, the prosecutor's overarching point-i.e., that Richeson could have gone to the 7-Eleven to seek help in calling 911-was accurate.
The second comment, while perhaps inartfully stated, was appropriate when considered in context. The prosecutor was refuting defense counsel's assertion that Richeson had a right to do what he did, by reminding the jurors that was the very issue they were required to decide. The prosecutor neither stated nor implied that he had personal knowledge or information that convinced him of Richeson's guilt; he emphasized only that the prosecution's position on the issue was different from that of the defense. Such argument does not constitute improper vouching.
Finally, the third comment did not invite the jury to judge Richeson against an external standard of how "law-abiding citizens" would act. Instead, it provided options available to Richeson if he believed someone had become a trespasser on the premises. At worst, the argument implied the option Richeson chose-involving the use of a chainsaw-was not a law abiding one.
Because we find no prosecutorial misconduct, we need not address the related argument regarding the requested mistrial. Instead, we affirm the judgment.
FACTS
Richeson controlled access to a mixed-use building on Pacific Coast Highway in Laguna Beach. The building included three units-a commercial unit in the front of the ground floor, a residence in the back of the ground floor, and a separate residence on the second floor. Richeson was living in a ground floor garage which had been upgraded. However, after the tenants of the ground floor unit departed, he also used that apartment for cooking and conducting his business.
Richeson was not the owner of the building, but he seems to have been given authority by the owner to access and control the premises.
In November 2021, Richeson and William Howie had been acquaintances for several years, and Howie had been performing landscaping and remodeling work for Richeson, on and off, for about four years. Richeson allowed Howie to live in the building as long as he continued to work for Richeson. Howie had lived there for three months, primarily in the second-floor unit, where he was painting and replacing the floor.
On the morning of November 10, 2021, Richeson and Howie had a disagreement. Howie told Richeson '"if you're not going to pay me, I'm going to get out of here."' Richeson then told Howie he was no longer welcome at the residence; when Howie went to the unit to begin gathering his belongings, Richeson tried to block his access. Howie pushed him aside and the two men had a physical altercation, which included Richeson pushing Howie's head into a wall, and Howie placing Richeson in a headlock. Howie then left while some of his belongings remained in the unit.
Richeson states Howie acknowledged in his call to the 911 dispatcher that he had also "hit [Richeson] on the head, and left bruises on his face." Richeson himself testified that while Howie put him in a "chokehold," he did not recall being hit.
Richeson did not ask Howie to return his key; he was aware Howie had no immediate options for another place to live. Although Howie believed Richeson thought he had moved out for good, he did not think Richeson had the right to evict him so quickly.
Between 10:30 and 11:00 p.m. that evening, Howie returned to the property and found Richeson sitting outside. He told Richeson he was going to stay the night; Richeson responded, '"[i]f you don't leave, I'm going to hurt you."' Howie proceeded into the unit using his key and locked the door. He was concerned about what Richeson might do and believed "he was going to try to come in one way or another."
Richeson went to his car and retrieved an electric chainsaw; he then walked up the stairs to the unit, punched a window with his bare fist to break the glass-causing his hand to bleed profusely-and threw shards of glass at Howie. Richeson was able to force his leg, upper body and chainsaw into the room through the window, so he turned on the chainsaw and pointed it at Howie. Howie defended himself with a piece of floorboard and a frying pan. He testified Richeson moved to within a foot of him.
Howie broke a different window in the unit with a broom handle in an effort to hit Richeson and dissuade him from entering the unit. At some point, Howie began videotaping the incident on his phone; the video was entered into evidence. Howie finally called the police. He told the dispatcher Richeson threatened to hurt him if he did not come outside, and he was in fear for his life. He also expressed regret for coming back to the unit.
The police arrived within five minutes. They found Richeson standing at the bottom of the second-story stairs, no longer holding the chainsaw. The police gave Richeson several commands, but he refused to comply. He was ultimately arrested and placed in a patrol vehicle. Howie was then able to leave the unit.
Richeson testified at trial. He did not deny using a chainsaw to confront Howie, but claimed his actions were reasonable under the circumstances. He stated Howie had no right to be in the residential unit without his consent, and he viewed Howie as a trespasser. Richeson testified he was also worried Howie would damage the new flooring and destroy or steal his personal tools.
Richeson explained he told Howie to leave when he first arrived, and after Howie then entered the unit, Richeson gave him a second opportunity to leave during the "three minutes or two minutes while I casually went downstairs to get my defense object [to use], if he acted in some hostile or threatening fashion like he had previously." According to Richeson, taking the chainsaw when he confronted Howie was a "precaution[] for my own safety."
Richeson stated he was concerned for his own physical safety because Howie "had taken knives off tables, because he had tried to choke me earlier that day, and basically had become a hostile figure." Richeson also explained that he did not have a cell phone and was therefore unable to call 911. He stated, "I did not have a phone to call the greater authorities, and I felt as though it was up to me to defend my property and my person."
On cross-examination, the prosecutor asked Richeson about whether he had other opportunities to reach out for help in dealing with Howie's unauthorized presence in the residential unit. When the prosecutor asked him if the residence was in a well-populated area, Richeson offered it was "right across the street from 7-Eleven" and "would be within the quarter-mile stretch that would be considered, you know, downtown."
Richeson stated the 7-Eleven was not open 24 hours, but when asked if it was closed "at the time," Richeson responded "I didn't check, but no." Richeson then confirmed the time of the confrontation was "around 10:30 to 11:00" and amended his answer, stating "to [his] knowledge" "all of the surrounding businesses, including the 7-Eleven, were closed."
Richeson acknowledged he was aware that when people have disputes, they have the option to file lawsuits and go to court to hash out their differences. He added that "it is typically a far more cumbersome process than it's worth."
Richeson admitted it was he who broke the window of the unit before he attempted to crawl through with his chainsaw. Richeson said he withdrew from the window when Howie began throwing pieces of wooden flooring at him. Richeson said he felt safe behind a wall after he retreated from the window, and because he did not see Howie advancing on him, he "held the chainsaw in a neutral position or un-nonfunctioning position." According to Richeson, he and Howie were never closer than three or four feet away from each other during the incident.
The jury was instructed that, to find Richeson guilty of assault with a deadly weapon, the prosecution must prove (1) Richeson did an act with a deadly weapon other than a firearm which by its nature would directly and probably result in the application of force to Howie; (2) he did so willfully and he was aware of facts that would lead a reasonable person to realize his act would have that effect; (3) when he acted he had the present ability to apply force with the deadly weapon; and (4) he did not act in lawful defense of property. The jury was instructed that the application of force could be even the slightest touching.
The jury was also instructed the lawful occupant of a home has the right to request a trespasser to leave. "If the trespasser does not leave within a reasonable time and it would appear to a reasonable person that the trespasser poses a threat to the home, the lawful occupant may use reasonable force to make the trespasser leave." The jury was further instructed that, when deciding whether defendant used reasonable force, they were to consider all the circumstances known to defendant and what a reasonable person in a similar situation and with similar knowledge would have believed.
The jury returned a verdict finding Richeson guilty of assault with a deadly weapon.
DISCUSSION
Richeson does not claim the evidence is insufficient to support his conviction. Nor does he claim the trial court committed instructional error. Instead, he contends the judgment must be reversed because the prosecutor engaged in three acts of misconduct during the course of closing arguments.
"A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process." (People v. Morales (2001) 25 Cal.4th 34, 44.) If prosecutorial error renders the defendant's trial fundamentally unfair under the federal Constitution, reversal of the judgment is required unless the error is harmless beyond a reasonable doubt. (People v. Castillo (2008) 168 Cal.App.4th 364, 386-387, fn. 9.)
When a claim of prosecutorial misconduct "focuses upon comments made by the prosecutor before the jury, the question [of the comments' prejudicial impact] is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
1. The 7-Eleven Argument
Richeson's first complaint is that the prosecutor acted improperly in seeking to cast doubt on his claim the 7-Eleven across the street was closed, because the prosecutor argued "common sense and logic tells us 7-Eleven is always open."
Richeson's counsel objected to the statement as relying on a fact not in evidence; the court overruled the objection and then reminded the jurors that "your memory of the testimony will control." The prosecutor then told the jurors he made the comment because 7-Eleven is one of the "most reliable" stores and is "always open." This argument was improper.
As explained in People v. Ward (2005) 36 Cal.4th 186, 215, a prosecutor "'"may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.'"" Richeson acknowledges that rule but claims the prosecutor's assertion about 7-Eleven always being open would not qualify as a matter of common knowledge.
We agree. Nonetheless, we conclude the issue in this case is a red herring given its context. The potential significance of the prosecutor's argument was his effort to undermine Richeson's credibility in asserting he had no means to call the police or otherwise seek help because he had no cell phone and the 7-Eleven across the street was closed. But as Richeson himself acknowledged in his testimony, he never considered calling 911 from the 7-Eleven. When asked if it was closed at the time, Richeson replied "I didn't check."
In his brief, Richeson twice makes the point that the name 7-Eleven suggests the store is not open all the time; instead, it "implies that . . . after 'Eleven' p.m. it might indeed be closed." (Italics added.) Again, we disagree. But as Richeson himself acknowledged in his testimony, his confrontation with Howie occurred before 11:00 p.m.; thus, according to his own explanation of what jurors could be expected to know about 7-Eleven stores, they could conclude the store was open at that time. That is the point the prosecutor was trying to make. Any error associated with the prosecutor's overstatement is therefore harmless.
2. The Vouching Claim
The second statement Richeson complains of occurred during the prosecutor's rebuttal argument. Responding to defense counsel's assertion that Richeson had a right to do what he did in confronting Howie with the chainsaw, the prosecutor said, "Well, that's the question, ladies and gentlemen. You guys decide. Right? If he had the ultimate right to do what he did, I would not be standing up here arguing to you to convict this man for what he did." When Richeson's counsel objected that it was improper "[v]ouching," the court overruled the objection and told the prosecutor, "You may continue."
The prosecutor then again emphasized it was the jury's job to decide whether Richeson's conduct was reasonable under the circumstances: "that's the ultimate question for the jury to decide. . . is what he did reasonable and necessary. That's really all for you to consider. Nothing is clear-cut. The right to defend yourself, that's not clear-cut. That's why you're here to decide this."
"Improper vouching occurs when the prosecutor either (1) suggests that evidence not available to the jury supports the argument, or (2) invokes his or her personal prestige or depth of experience, or the prestige or reputation of the office, in support of the argument." (People v. Anderson (2018) 5 Cal.5th 372, 415.) In determining whether such vouching has occurred, "[w]e 'view the statements in the context of the argument as a whole.'" (People v. Rodriguez (2020) 9 Cal.5th 474, 480 (Rodriguez).)
Richeson argues "the prosecutor committed misconduct by stating his personal belief about appellant's guilt, suggesting that evidence not available to the jury supported his argument, and invoking his personal prestige or depth of experience, or the prestige and reputation of his office, in support of his argument. He essentially told the jury he would not be prosecuting appellant if he did not believe appellant was guilty."
This time we must disagree. We reject the assertion that the prosecutor's statement "suggest[ed] that evidence not available to the jury supported his argument." Richeson points to no context surrounding the prosecutor's argument which might support his position. As explained by our Supreme Court in People v. Mayfield (1997) 14 Cal.4th 668, 781-782 (abrogated on another point in People v. Scott (2015) 61 Cal.4th 363, 391), "[w]hen arguing to the jury, it is misconduct for a prosecutor to express a personal belief in the defendant's guilt if there is a substantial danger that the jurors will construe the statement as meaning that the belief is based on information or evidence outside the trial record [citation], but expressions of belief in the defendant's guilt are not improper if the prosecutor makes clear that the belief is based on the evidence before the jury."
Although Richeson likens this case to People v. Alvarado (2006) 141 Cal.App.4th 1577 (Alvarado), we find the case inapposite. In Alvarado, the prosecutor explained to the jury, '"I have a duty and I have taken an oath as a deputy District Attorney not to prosecute a case if I have any doubt that that crime occurred. [¶] The defendant charged is the person who did it. To insinuate, suggest, or to say outright that I would risk my job, my profession, multiple police officers-I think one detective was on what, 33 years, another one was 27, another one just starting his career-to suggest that any of us would put our professional career on the line because this thug took some kid's bike is offensive and it is preposterous."' (Id. at p. 1583, italics omitted.) That statement not only relied on the prestige of the district attorney's office in support of the conviction, it also asked the jury to consider facts not in evidence, i.e., that the prosecutor and the police officers would be risking their jobs if the defendant were not guilty. (See Rodriguez, supra, 9 Cal.5th at p. 482 ["the prosecutor did convey to the jury that the officers would risk losing their jobs by lying on the stand. There was no evidence in the record to support this contention"].) No such thing occurred here.
3. Invitation to Speculate
The third instance Richeson complains of also occurred during the prosecutor's rebuttal argument. He asked the jury to "[c]onsider all the circumstances and the evidence that's presented before you," and emphasized Richeson had options to address Howie's presence in the residence other than using a chainsaw: "He literally had to walk down to his truck and could have left. He could have filed a lawsuit like normal law-abiding citizens do in handling ...." Defense counsel then objected: "Objection. Improper argument." The court again overruled the objection.
Richeson argues the prosecutor's statement was improper because it "pos[ed] an 'external standard' and invit[ed] the jury to consider that standard as a basis for determining its verdict."
We find some merit in the Attorney General's claim that the issue was forfeited in the trial court. While Richeson's counsel did object that the prosecutor's argument was improper, she did not specify any legal ground for her objection. She consequently failed to preserve the objection for appellate review. (See People v. Riel (2000) 22 Cal.4th 1153, 1184 ["Defendant also contends the evidence was irrelevant and should have been excluded as unduly prejudicial. He did not object on these grounds at trial, so he may not raise them on appeal"].)
In any event, even if Richeson had preserved the argument, we would find it unpersuasive. He relies on People v. Bandhauer (1967) 66 Cal.2d 524, 530, for the proposition that a prosecutor's reliance on an "external standard" is improper. But in that case, the prosecutor built an entire argument on his own experience as a prosecutor to convince the jury the defendant was especially depraved: '"During the many many years that I have been [a] prosecutor, I have seen some pretty depraved character [sic]. Usually they are kind of old because it takes a little while to become this depraved. But it has seldom been my misfortune to see a more deprave [sic] character than this one.'" (Id. at p. 529.) That was vouching.
In this case, by contrast, the prosecutor never created an external standard. The fact that Richeson could have filed a lawsuit against Howie if he viewed him as a trespasser was in evidence. Richeson acknowledged he was aware of that option, but he considered it to be a "far more cumbersome process than it's worth."
The prosecutor reminded the jury Richeson had other legal remedies available to him if he believed Howie was trespassing. This was a key issue in determining whether his chosen course of action was reasonable. At worst, the argument implied the option Richeson chose-involving the use of a chainsaw-was illegal. We find no error.
DISPOSITION
The judgment is affirmed.
WE CONCUR: MOORE, ACTING P. J. DELANEY, J.