Opinion
F058420 No. BF124569A
07-02-2010
THE PEOPLE, Plaintiff and Respondent, v. JASON TROY PHILLIPS, Defendant and Appellant.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant andAppellant.Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief AssistantAttorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez,Lloyd G. Carter and Leanne Le Mon, Deputy Attorneys General, for Plaintiff andRespondent.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter and Leanne Le Mon, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
OPINION
DAWSON, J.
APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush & Michael E. Dellostritto, Judges.
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Following a jury trial, Jason Troy Phillips (appellant) was convicted, in count 1, of possession of methamphetamine for sale (Health & Saf. Code, § 11378), in count 3, of possession of a controlled substance (id., § 11350, subd. (a)), in count 4, of misdemeanor possession of drug paraphernalia (id., § 11364), and, in count 5, of misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1)). The jury found true the attached allegations that appellant was personally armed with a firearm in the commission of counts 1 and 3 (Pen. Code, § 12022, subds. (a)(1) & (c)).
The jury also convicted appellant, in count 2, of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), but the conviction was dismissed by the trial court as a lesser included offense of possession of methamphetamine for sale.
At sentencing, the trial court imposed the midterm of two years on count 1, with a consecutive three-year term for the gun enhancement; a concurrent two-year sentence on count 3, plus a one-year gun enhancement, both stayed pursuant to Penal Code section 654; and a concurrent term of 180 days on counts 4 and 5. The court imposed various fees and fines, including a total of four criminal conviction assessments of $30 each under Government Code section 70373.
Further statutory references are to the Government Code unless indicated.
We note several errors in the record concerning the fees and fines. First, the minute order incorrectly refers to the sentence and attached fees and fines in count 3 as belonging to count 1. In addition, the abstract of judgment fails to list the various fees and fines attached to counts 3, 4, and 5. Instead, it only lists those attached to count 1. We will remand for correction.
On appeal, appellant contends prejudicial misconduct occurred when the prosecutor improperly vouched for the credibility of a prosecution witness during closing argument. Alternatively, appellant argues that if we determine his contention has been waived, he was denied effective assistance of counsel. He also requests that this court conduct an independent review of the sealed portion of the record pertaining to discovery of police personnel records under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) to determine whether the trial court erroneously withheld discoverable information from the defense. Finally, appellant contends the assessment imposed pursuant to section 70373 must be reversed. We agree only that the section 70373 assessment must be stricken and, in all other respects, affirm.
FACTS
On August 20, 2008, Officer Chad Haskins saw appellant riding a bicycle on the wrong side of the road and tried to stop him. Haskins turned his marked vehicle, with overhead lights flashing, toward appellant. He exited the vehicle, made eye contact with appellant, and told him to stop. Appellant rode away from the officer, and Haskins eventually followed appellant to a fastfood restaurant.
Inside the restaurant, Officer Haskins checked the restroom door, which was locked. Haskins knocked and identified himself, but the occupant of the restroom said "hold on" and Haskins heard the toilet flush once or twice. Haskins then opened the door with a key and found appellant and his bicycle inside. Haskins arrested appellant and found nothing during a search of him and the bathroom.
When questioned, appellant first claimed that he did not see Officer Haskins, and then said he saw and heard him, but did not want to talk to him because he "usually gets in trouble" when he does so. Appellant told Haskins where he lived.
At appellants house, Robin Foster opened the door. Once inside, Officer Haskins found appellants wallet on a shelf in the closet of the master bedroom. Underneath the wallet was a baggie that contained 12.6 grams of methamphetamine. Haskins also found two bottles of OxyContin tablets, a "Radio Shack NASCAR scanner," a Taurus ninemillimeter handgun, a glass pipe used to smoke methamphetamine, and a pink handbag with $1,722 in cash and a pay-and-owe notebook inside. Detective Chris Johnson opined that the methamphetamine was possessed for purpose of sales.
Appellant told Officer Haskins that the methamphetamine was not his, that the OxyContin was given to him by a friend, that he bought the gun from a lady, and that the money was for his rent.
Defense
Officer Haskins was recalled as a defense witness and testified that the pink handbag also contained a pizza receipt with the name "Robin" on it. He also testified that there was no record for the gun found in the home and no evidence that it was stolen.
Jeffrey Privette, a friend of appellants, testified that he occasionally stayed at appellants place, that he had fibromyalgia, and that the OxyContin "appeared to be" his.
Appellant testified in his own defense that he was riding his bicycle and did not see the officer or police vehicle until it almost ran into him. At that point, he ran into the fastfood restroom because he "lost his bowels." He claimed the OxyContin belonged to a friend, he had never seen the methamphetamine before, he used the scanner to listen to the pit stops in racing, he used the handgun, which he bought from a woman, when he went pig hunting, and the pink handbag belonged to Robin Foster. He also claimed never to have seen the pay-and-owe sheets before, and he identified the handwriting on the paper as belonging to a female.
Rebuttal
Foster testified that she and appellant shared the master bedroom of the house. She denied the methamphetamine or pipe was hers, and claimed never to have seen the gun or pills before. She claimed the pink handbag belonged to both of them and that they kept money in it "to pay back people that we borrowed money from." The list of names and money amounts was written in part by her. According to Foster, the money amount indicated the amount she and appellant owed each person.
DISCUSSION
1. Prosecutorial Misconduct
Appellant contends the prosecutor engaged in prejudicial misconduct in closing argument when he vouched for the credibility of Officer Haskins, the primary prosecution witness, thereby violating appellants right to due process and a fair trial. He further contends the courts admonition to the jury did not cure the error. Alternatively, he argues that if his contention is waived by counsels failure to make the proper request for curative instructions, he was denied effective assistance of counsel. We conclude that on this record any error was harmless.
"The applicable federal and state standards regarding prosecutorial misconduct are well established. "A prosecutors... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so "egregious that it infects the trial with such unfairness as to make the conviction a denial of due process."" [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ""the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."" [Citation.]" (People v. Navarette (2003) 30 Cal.4th 458, 506.)
Prosecutorial misconduct requires reversal only if it results in prejudice to the defendant. (People v. Fields (1983) 35 Cal.3d 329, 363.) Where it infringes upon the defendants constitutional rights, reversal is required unless the reviewing court determines beyond a reasonable doubt that the misconduct did not affect the jurys verdict. (People v. Harris (1989) 47 Cal.3d 1047, 1083.) Prosecutorial misconduct that violates only state law is cause for reversal when it is reasonably probable that a result more favorable to the defendant would have occurred had the prosecutor refrained from the objectionable conduct. (People v. Barnett (1998) 17 Cal.4th 1044, 1133.)
The issue of prosecutorial misconduct is forfeited on appeal if not preserved by timely objection and request for admonition in the trial court. (People v. Cunningham (2001) 25 Cal.4th 926, 1000.) If an objection has not been made, ""the point is reviewable only if an admonition would not have cured the harm caused by the misconduct"" (id. at pp. 1000-1001) or if an objection would have been futile. (People v. Hill (1998) 17 Cal.4th 800, 820-821.)
Here, during closing argument, the prosecutor stated that both appellant and Foster claimed they had no idea where the methamphetamine came from. He then argued:
"The implication is clear. They are implying that Officer Haskins planted that evidence. Officer Haskins has no motive whatsoever for planting this evidence. If he is found guilty of doing anything like that, he is going to lose his job, lose his pension."
Defense counsel objected, as "not in evidence," and the trial court sustained the objection, stating defense counsel was correct in that there was no evidence "as to any particular result that might come to Officer Haskins." The court then instructed the jury to "disregard it."
The prosecutor continued, stating, "Its, I would think, highly likely that he would lose his job, that he would lose his pension, that he would face criminal prosecution." Defense counsel again objected, this time without stating a reason, and the court again sustained the objection, telling the jury that the prosecutor was asking it to speculate on some motive relevant to Officer Haskins testimony, but that the jury could "draw whatever reasonable inferences they need to draw relevant to his credibility without you giving them potential possibilities." The court then ordered the prosecutor to "move on to something else."
We note first that appellant did not specifically object to the statements of the prosecutor during closing argument as "improperly vouching" for the credibility of a witness, only on the grounds that the statements were "not in evidence" or without stating any grounds. As noted earlier, the general rule is that ""a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion and on the same ground the defendant [requested] an assignment of misconduct and [also] requested that the jury be admonished to disregard the impropriety. [Citation.]"" (People v. Ayala (2000) 23 Cal.4th 225, 284.)
Nevertheless, because the People do not raise waiver on appeal and because appellant makes an alternate claim of ineffective assistance of counsel if we deem the issue waived, we will address the issue on the merits.
A prosecutor is entitled to comment on the credibility of a witness based on evidence adduced at trial. (People v. Thomas (1992) 2 Cal.4th 489, 529.) "Although a prosecutor may not personally vouch for the credibility of a witness, a prosecutor may properly argue a witness is telling the truth based on the circumstances of the case." (People v. Boyette (2002) 29 Cal.4th 381, 433.) Prosecutorial assurances regarding honesty or reliability of a prosecution witness, supported in the record, do not constitute improper "vouching." (People v. Medina (1995) 11 Cal.4th 694, 757.) What a prosecutor may not do is to suggest that he or she has information undisclosed to the jury bearing on the issue of credibility, veracity, or guilt. The danger in such remarks is that the jurors will believe that some evidence, known only to the prosecutor, has been withheld from them. (People v. Green (1980) 27 Cal.3d 1, 35, overruled on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3; People v. Padilla (1995) 11 Cal.4th 891, 945-946, overruled on another ground in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1.)
We agree with the trial court that there was no evidence in the record to support an inference that Officer Haskins would suffer the loss of pension benefits or his livelihood if he was not truthful in his testimony, which in turn would give the officer the motivation to tell the truth. But even if we were to determine that the prosecutor committed misconduct in making such comments, we are satisfied that the error was harmless and did not deny appellant due process.
We disagree with appellant that his case is akin to People v. Herring (1993) 20 Cal.App.4th 1066 (Herring) in which the appellate court found the trial courts admonition did not cure the harm caused by the prosecutors misconduct. In Herring, the prosecutor, during closing, described his role as representing "victims," while defense counsels "people are rapists, murderers, robbers, child molesters," that defense counsel had to help them "plan a defense," that he didnt want to hear the truth, and that he had coached the defendant. (Id. at pp. 1073-1074.) The prosecutor also referred to the defendant, accused of assault with intent to commit rape, attempted rape, and sexual battery, as, among other things, "primal man in his most basic level" and "like a dog in heat." (Ibid.) Defense counsel objected to only one of the many remarks. The trial court sustained the objection, found there was "no evidence" to support the comment, and admonished the jury to disregard the remark and that the only evidence the jury could consider was derived from witnesses testimony or evidence admitted at trial. (Ibid.)
The court in Herring found the statements, which "pervade[] the prosecutors closing argument," in the cumulative, and absent a timely admonition, prejudicial. (Herring, supra, 20 Cal.App.4th at pp. 1075-1077.) The court found the prosecutors remarks went to the heart of the defense as the issue was one of credibility. (Id. at p. 1077.) The defense theory was that the defendant and the victim had lived together at one point and that they had engaged in consensual sexual intercourse. (Id. at p. 1071.)
"The prosecutors comments accused defense counsel of fabricating a defense, implied that appellant lied on instructions from his counsel, and asserted that defense counsel did not believe his own client. Similar arguments have been misconduct. [Citations.] The jurys inability to reach a verdict on the most serious offense and its questions to the court illustrate how crucial the issue of credibility was. Consequently, we cannot hold that admonishments would have cured the harm." (Id. at p. 1077.)
Here, the prosecutors personalized opinion regarding Officer Haskins not committing perjury was brief, innocuous, and followed by references to evidence bearing on Officer Haskins and Detective Johnsons credibility. Further, not only did the court appear to admonish the jurors on its own that there was no evidence of the officers motivation or lost employment or pension benefits and that counsels argument was mere speculation, the court had earlier twice instructed the jurors that nothing the attorneys said in argument was evidence and to base their decision only on the evidence in the case. (CALCRIM Nos. 222, 223.) We presume the jurors followed the courts instructions. (People v. Boyette, supra, 29 Cal.4th at p. 436.)
In addition, despite appellants claim to the contrary, the evidence presented at trial provided strong evidence of appellants guilt, especially in light of appellants and Fosters inconsistencies in where the money came from, who the pink handbag belonged to, the purpose of the names and amounts on the "pay-and-owe" sheet, and the presence of the gun and pills. It is not reasonably probable that a more favorable outcome would have occurred in the absence of the prosecutors comments concerning Officer Haskins. (See People v. Fields, supra, 35 Cal.3d at p. 363 [prosecutorial misconduct was harmless error when evidence of defendants guilty was overwhelming].)
Finally, because we addressed and dismissed appellants claim of improper vouching on the merits, we need not address his alternate claim of ineffective assistance of counsel.
2. Independent Review of Sealed Record
Prior to trial, appellant filed a Pitchess motion. He sought discovery of the police personnel record of Officer Haskins regarding citizen complaints relating to dishonesty and use of excessive force. The trial court, after an in camera hearing, turned over some discoverable information to the defense. Appellant asks us to conduct an independent review of the sealed records on his Pitchess motion to determine whether any police personnel record documents were improperly withheld. (People v. Mooc (2001) 26 Cal.4th 1216, 1229.) We have done so and find no error.
In Pitchess, supra, 11 Cal.3d 531, the California Supreme Court held that a criminal defendant is entitled to discovery of officer personnel records if the information contained in the records is relevant to the defendants ability to defend against the charge. Later enacted legislation implementing the courts rule permitting discovery (Pen. Code, §§ 832.5, 832.7, 832.8; Evid. Code, §§ 1043-1047) balanced the accuseds need for disclosure of relevant information against a law enforcement officers legitimate expectation of privacy in his or her personnel records. The Legislature concluded that a defendant, by written motion, may obtain information contained in a police officers personnel records if it is material to the facts of the case. (Evid. Code, § 1043, subd. (b)(3).) When presented with such a motion, the court rules as to whether there is good cause for disclosure. (Evid. Code, §§ 1043, 1045.) If the court orders disclosure, the custodian of the officers records brings to court all the potentially relevant personnel records and, in camera, the court determines whether any of the records are to be disclosed to the defense. "A trial courts ruling on a motion for access to law enforcement personnel records is subject to review for abuse of discretion." (People v. Hughes (2002) 27 Cal.4th 287, 330; see also Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1086, citing People v. Samayoa (1997) 15 Cal.4th 795, 827.)
Evidence Code section 1043 requires that the motion for discovery must include, inter alia, affidavits "showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation...." (Id., subd. (b)(3).) "A showing of good cause requires defendant to demonstrate the relevance of the requested information by providing a specific factual scenario which establishes a plausible factual foundation for the allegations of officer misconduct committed in connection with defendant. [Citations.]" (California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1020.) "[O]nly documentation of past officer misconduct which is similar to the misconduct alleged by defendant in the pending litigation is relevant and therefore subject to discovery. [Citations.]" (Id. at p. 1021; see also Evid. Code, § 1045, subd. (a).)
In support of his Pitchess motion seeking information concerning Officer Haskins, defense counsel stated that the requested police personnel information was relevant and necessary for the defense because Officer Haskins "used excessive force and set forth false statements in his report." In the motion, defense counsel listed various allegations in Haskins police report that appellant alleged were untrue: that Haskins got out of his patrol car and made eye contact with appellant and told him to "stop"; that appellant fled on his bicycle from Haskins; that when appellant was in the restroom at the fastfood restaurant, appellant told Haskins to "hold on" and then flushed the toilet; that appellant told Haskins that he did not like talking to the officer because "every time I do I get into trouble"; that appellant told Haskins he was "supposed to start PC 1000 tomorrow so I thought maybe there was a problem with it"; and that the methamphetamine was found in appellants house. The motion also alleged that Haskins used excessive force on appellant when he entered the restroom at the restaurant, shoved appellant violently against a wall, punched him in the torso, and repeatedly threatened to use a Taser on him.
This reference appears to be to Penal Code section 1000, which determines violations amenable to deferred entry of judgment.
We ordered the trial court to provide us with the sealed document it reviewed in conducting its Pitchess analysis. Having obtained those documents, we have reviewed them and find no reversible error with regard to nondisclosure of those records. (People v. Hughes, supra, 27 Cal.4th at p. 330; People v. Watson (1956) 46 Cal.2d 818, 836.)
At sentencing, appellant was ordered to pay a $30 assessment pursuant to section 70373, subdivision (a)(1) (the assessment). Appellant argues the assessment is unauthorized and must be stricken because the crimes occurred before section 70373s effective date. Though members of this panel have previously agreed with this position, upon further reflection we disagree. Instead, we agree with the Third District Court of Appeal that the date of conviction, not the date of the crime, controls application of the statute. (People v. Castillo (2010) 182 Cal.App.4th 1410.)
Subdivision (a)(1) of section 70373 provides in relevant part:
"To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense.. The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony...." (Added by Stats. 2008, ch. 311, § 6.5, eff. Jan. 1, 2009, italics added.)
Appellant committed his crime in 2008 and was sentenced in 2009. The issue is whether the statute applies where the crime was committed before the statute became effective.
In People v. Alford (2007) 42 Cal.4th 749 (Alford), our Supreme Court addressed Penal Code section 1465.8, the language of which closely resembles section 70373. Former Penal Code section 1465.8 provided, in relevant part,
Penal Code section 1465.8 has been amended after Alford but not in any way that is material here.
"To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense (Italics added.)
Penal Code section 1465.8 became operative on August 17, 2003, shortly after the defendant committed a robbery but before he was convicted. (Alford, supra, at pp. 752-753.) The court determined that the statute did not violate ex post facto prohibitions because it served a nonpunitive purpose. The Alford court also determined that the Legislature intended Penal Code section 1465.8 to apply where the conviction occurred on or after the statutes effective date, regardless of when the crime occurred. (Alford, supra, at pp. 754-756.) In doing so, the court relied on the fact that Penal Code section 1465.8 was created by an urgency statute enacted as part of an emergency budgetary measure for the purpose of funding court security. The court examined relevant budgetary figures to determine the Legislatures intent. (Alford, supra, at pp. 754-755.)
Citing Alford, appellant acknowledges that, because section 70373 serves a nonpunitive purpose, applying it to crimes committed before its effective date does not violate prohibitions on ex post facto laws. But, appellant argues, unlike Penal Code section 1465.8, there is nothing in the statute or in the legislative history of section 70373 that indicates an intent that it apply where the criminal conduct occurred before the legislation became operative. (See Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1193-1194 [general rule is that, "in the absence of a clear legislative intent to the contrary statutory enactments apply prospectively"].) We disagree.
Instead, we agree with respondent, and with the Third Appellate Districts opinion in Castillo, that it is the language of the statute that controls:
"The assessment is imposed on every conviction as defined. (§ 70373, subd. (a)(1).) Defendants conviction occurred after the statutes effective date. The fact that defendants conviction flowed from antecedent criminal conduct is not addressed by the statute. [¶]... [¶] The similarity between [Penal Code section 1465.8 and section 70373, however,] is stark. The conclusion that the Legislature decided to convey the same meaning in both statutes seems inescapable. Alford was decided before section 70373 was enacted. Generally, when a term has been given a particular meaning by a judicial decision, it should be presumed to have the same meaning in laterenacted statutes or constitutional provisions. [Citations.] [¶] The Legislatures decision to word section 70373 like the court security fee statute, after the latter statute had been interpreted by Alford, to apply to convictions occurring after that statutes effective date shows that the Legislature intended the new assessment to apply to convictions occurring after the new statutes effective date." (People v. Castillo, supra, 182 Cal.App.4th at p. 1414.)
We also agree with Castillo that the fact that section 70373 is part of a budgetary enactment supports application of the assessment to convictions regardless of the date of the underlying offense. (People v. Castillo, supra, 182 Cal.App.4th at pp. 1414-1415.) The assessment "is but one component of a broader legislative scheme in which filing fees in civil, family, and probate cases were also raised. [Citations.]" (People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 4 [§ 70373 does not violate ex post facto prohibitions].) Similarly, the court security fee considered in Alford was enacted as part of a larger budgetary measure. (Alford, supra, 42 Cal.4th at p. 754.)
Section 70373 was enacted as part of Senate Bill No. 1407 (2007-2008 Reg. Sess.) on September 26, 2008. In relevant part, Senate Bill No. 1407 (2007-2008 Reg. Sess.) establishes the Immediate and Critical Needs Account (ICNA) of the State Court Facilities Construction Fund (SCFCF). "To ensure and maintain adequate funding for court facilities," section 70373 imposes a $30 assessment on every conviction for a felony or misdemeanor criminal offense and $35 for each infraction, with certain limited exceptions. (§ 70373, subd. (a)(1).) The amount collected from the assessment is to be deposited in the ICNA. (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1407 (2007-2008 Reg. Sess.) as amended May 27, 2008, p. 2.)
We conclude that the assessment was properly imposed.
4. Correction to Abstract of Judgment
We note that the abstract of judgment states the various fees and fines attached to count 1, but fails to list those attached to counts 3, 4, and 5. Because all fines and fees must be set forth in the abstract of judgment, we will remand and direct the trial court to correct the cited clerical errors. (People v. High (2004) 119 Cal.App.4th 1192, 1200-1201.)
DISPOSITION
We order the abstract of judgment corrected to include the fines and fees attached to each count. As modified, the judgment is affirmed. The clerk of the superior court is ordered to prepare an amended abstract of judgment in accordance with this opinion and to transmit it to the appropriate authorities.
DAWSON, J.
WE CONCUR:
ARDAIZ, P.J.
LEVY, J.