Opinion
B300477
04-03-2020
In re MIREK VOYT, on Habeas Corpus.
Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. PA088150) APPEAL from an order of the Superior Court of Los Angeles County, Hayden A. Zacky, Judge. Appeal dismissed. Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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In 2018, a jury convicted defendant and appellant Mirek Voyt of (count 1) kidnapping to commit oral copulation by force or fear (Pen. Code, § 209, subd. (b)(1)), and (count 2) forcible oral copulation by force or fear. (Former § 288a, subd. (c)(2).) The jury also found that Voyt personally used a firearm in committing both offenses. (§ 12022.53, subd. (b).) The charges stemmed from an incident in 2001 in which Voyt kidnapped a 14-year-old boy at gunpoint, transported him to Voyt's apartment, restrained him, and orally copulated him. Police began investigating Voyt in 2016 when a lab determined that DNA samples taken from the victim at the time of the crime matched the DNA profile of a sample taken from Voyt. The trial court sentenced Voyt to 25 years to life on count 2, plus an additional 10 years for the firearm enhancement. The trial court also sentenced Voyt to life imprisonment with the possibility of parole plus 10 years for the firearm enhancement for count 1, but the court stayed this portion of the sentence pursuant to section 654. We affirmed Voyt's conviction on direct appeal in 2019. (See People v. Voyt (Apr. 2, 2019, B289379) [nonpub. opn.].)
Unless otherwise specified, subsequent statutory references are to the Penal Code.
Section 288a has subsequently been amended without relevant substantive change and renumbered as section 287. (See Stats. 2018, ch. 423, § 49, pp. 3215-3218.) --------
On July 10, 2019, Voyt filed a petition for a writ of habeas corpus in the trial court. He made two claims in his petition: First, Voyt contended that he was entitled to relief under Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, pp. 5104-5106) (Senate Bill No. 620), which became effective on January 1, 2018 and gave trial courts the authority to strike sentencing enhancements in the interest of justice. Second, Voyt claimed that a police officer who testified against him at trial made a false statement about finding a gun in Voyt's apartment. Voyt claimed that a law enforcement officer stated in court proceedings that a gun was discovered during a search of Voyt's home. In fact, Voyt surrendered his handgun to police approximately one year before the search of his home.
The trial court denied Voyt's habeas petition. The court found that Voyt had forfeited his claims by failing to raise them on direct appeal. The court also stated that it recognized it had the authority to strike Voyt's firearm enhancement, but "made it abundantly clear when sentencing [Voyt], that it believed the facts supporting the conviction were outrageous and heinous and that [Voyt] deserved to be sentenced to the maximum term prescribed by law."
Voyt purported to appeal the denial of the habeas petition, and we appointed counsel to represent him. After examining the record, counsel filed an opening brief on February 13, 2020 raising no issues and asking this court to review the record independently. (See People v. Wende (1979) 25 Cal.3d 436.) On the same date, we sent a letter advising Voyt that he had 30 days within which to personally submit any contentions or issues he wished us to consider. We received a supplemental brief on March 2, 2020.
As our Supreme Court has explained, "[a] petitioner currently has no right to appeal from a superior court denial of habeas corpus relief. Instead, review is obtained by filing a new habeas corpus petition in a higher court." (Briggs v. Brown (2017) 3 Cal.5th 808, 836; accord, People v. Gallardo (2000) 77 Cal.App.4th 971, 983 ["Although the People may appeal the granting of a writ of habeas corpus, the detainee has no right to appeal its denial and must instead file a new habeas corpus petition in the reviewing court."].) For this reason, we must dismiss Voyt's appeal.
We have reviewed the entire record in this case, including Voyt's habeas petition in the trial court, his notice of appeal, and his supplemental brief, and concluded that even if he had the right to appeal, he would not be entitled to relief on the merits. We are satisfied that Voyt's appointed appellate counsel fully complied with her responsibilities. (See People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende, supra, 25 Cal.3d at p. 441.)
In his supplemental brief, Voyt contends that the prosecutor committed misconduct by misrepresenting the truth regarding the location of the gun. We are not persuaded. During her opening statement, the prosecutor inaccurately described the way police found out about Voyt's handgun, but the misstatement was not significant to the case.
During opening statements, the prosecutor told the jury as follows: "You are going to hear that in February of 2017, officers performed a search warrant at [Voyt]'s current residence." Among other items, "[t]hey recovered a firearm. A firearm that was registered to [Voyt] at the time the crime occurred, also consistent with what [the victim] described."
At trial, a police detective testified that he began investigating Voyt in November 2016 after a DNA test linked Voyt to the crime. The detective checked the records and determined that Voyt had had a nine-millimeter Browning pistol registered to his name since 1984. The victim testified that the gun registered to Voyt was similar to the one that his attacker had pointed at him in 2001.
The detective did not recover the gun in a search of Voyt's apartment, however. Instead, Voyt surrendered the weapon on March 8, 2016 as one of the conditions of his probation for an unrelated conviction. Consequently, the gun was not at his apartment when police searched it in February 2017.
We disagree with Voyt's contention that the trial court's misstatement constituted prosecutorial misconduct. A prosecutor commits misconduct by " 'us[ing] deceptive or reprehensible methods to persuade the jury.' " (People v. Friend (2009) 47 Cal.4th 1, 29.) In this case, the prosecutor made a single misstatement in a way that had no bearing on Voyt's guilt of the crimes of which he was accused. The detective's testimony regarding the gun was incriminating because it showed that Voyt owned the weapon at the time of the kidnapping in 2001. Whether he still had the gun in 2017 was irrelevant. The prosecutor's single misstatement regarding the location of the weapon in 2017 was not deceptive or reprehensible, and it did not prejudice Voyt because " ' "it is not reasonably probable that the . . . [misstatement] affected the jury's evaluation of the evidence or the rendering of its verdict." ' " (Id. at p. 31.)
Voyt points to two other misstatements related to the gun, but these were equally immaterial. During Voyt's sentencing hearing, the trial court asked the detective who testified against Voyt, "[t]he police did confiscate a firearm during the execution of the search warrant. Is that correct, detective?"
The detective replied, "Yes," but then immediately corrected himself by stating, "Not during the search warrant."
Voyt's attorney clarified the matter: "Judge, it was turned in after the conviction" in an earlier case.
These statements occurred after Voyt's trial was over while the trial court was performing its duty to ensure that Voyt had complied with the requirement to relinquish his firearms. (See § 29810.) The detective immediately corrected himself, and Voyt's attorney immediately provided the accurate information.
The other misstatement occurred in our prior opinion in this case, where we listed the handgun among the possessions police recovered during the execution of the search warrant on Voyt's apartment. (See People v. Voyt, supra, B289379.) We regret the error, but for the reasons described above, the location of Voyt's handgun in 2017 did not affect the outcome of his appeal.
Voyt's claim regarding Senate Bill No. 620 is likewise meritless. The law became effective January 1, 2018, shortly before Voyt's sentencing hearing. The trial court expressed uncertainty as to whether the court had discretion under the new law to strike a firearm enhancement in a case where the defendant committed his crimes many years earlier. But the court clarified that "even if [it] had the discretion, [it] would decline to strike that firearm allegation based upon the facts of the crime itself." The court reiterated that view in rejecting Voyt's habeas petition. The trial court thus considered Voyt's case and elected not to strike the firearm enhancement. The court did not abuse its discretion in reaching that conclusion.
DISPOSITION
The trial court's order denying Voyt's petition for a writ of habeas corpus is not appealable. For this reason, the appeal is dismissed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur:
CHANEY, J.
BENDIX, J.