Opinion
H043801
03-01-2018
THE PEOPLE, Plaintiff and Respondent, v. PEDRO ALVAREZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS150987)
Defendant Pedro Alvarez appeals from a judgment entered after a jury found him guilty of three counts of custodial possession of a weapon (Pen. Code, § 4502, subd. (a) - counts 1, 5, and 6), two counts of assault by a state prisoner (§ 4501 - counts 2 and 4), and one count of attempted murder (§§ 664/187, subd. (a) - count 3). As to count 5, the jury found true the allegation that defendant personally used a deadly weapon (§ 969f, subd. (a)). The jury also found true the allegation that defendant committed attempted murder (count 3) with premeditation and deliberation. Defendant admitted that he had suffered four strike priors (§ 1170.12). The trial court sentenced defendant to a total term of 52 years to life in state prison.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant contends: (1) the trial court erred when it granted the prosecution's motion to consolidate two cases arising from separate incidents; (2) there was insufficient evidence to support his convictions on counts 3, 4, and 5; (3) the trial court erred when it found that Miranda did not apply to Correctional Officer (CO) Schlitz's questions to defendant about the weapons in his Bibles; (4) the trial court erred when it admitted expert testimony and failed to instruct the jury pursuant to CALCRIM No. 332; (5) the prosecutor committed multiple acts of prosecutorial misconduct; and (6) the cumulative effect of these errors violated his due process rights. We affirm the judgment.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
I. Statement of Facts
A. Prosecution's Case
1. Incident in the Yard on April 23, 2014 (Counts 1 and 2)
On April 23, 2014, CO Gregorio Gudino was on duty on yard B at Salinas Valley State Prison. At about 11:00 a.m., he heard the announcement of "yard down" over the radio and the PA system. This announcement was a signal to order the inmates to lie on the ground. There were about 400 inmates on the yard at that time. After the order was given, CO Gudino saw two inmates striking another inmate, who was trying to defend himself. They were punching him in the upper torso and facial area.
CO Gudino and other correctional officers approached the three inmates to stop the fight. When the inmates did not comply with their orders, CO Gudino threw an "OC grenade blast" to disperse them. The inmates continued fighting. CO Gudino saw that the inmate, identified as Perez, had an inmate-manufactured weapon in his right hand and was stabbing the victim's lower back area. The victim, identified as Antonio Acosta, had blood on his shirt. CO Gudino believed defendant was the other aggressor. After the officers pepper-sprayed the inmates' faces, Perez tossed the weapon about 10 to 15 feet away and laid down on the ground. CO Gudino never saw defendant throw an object. It was possible that he confused a punching motion with a stabbing motion. If defendant had a weapon, CO Gudino did not see it.
CO Mary Curiel also observed the incident. She saw two inmates making a stabbing motion toward another inmate's "upper torso and upper face area." One inmate never pushed or fought back. He held his arms up against his face the entire time. CO Curiel did not see an object in either of the assailants' hands or anyone throw anything when the fight ended. After defendant and Perez were handcuffed, medical staff attended to Acosta, who was bleeding and appeared to be unconscious. Acosta was eventually taken to the hospital.
Two weapons were confiscated near the suspects. CO Marc Hernandez found an inmate-manufactured knife about one and a half to two feet from Acosta. The weapon appeared to have blood on it. CO Chris Wilson collected a six-inch long weapon which was made of melted plastic and sharpened to a point. It was found about 15 feet from defendant. No DNA or fingerprint testing of this weapon was conducted. Photographs of defendant showed no injuries on him and a suspected blood stain on his arm. Defendant also had a small laceration on his top right knuckle. There was no DNA testing of the blood on defendant's hand.
Acosta testified that he was attacked on the prison yard, but he declined to answer questions about the assault. He denied that he knew defendant or that he had a weapon that day.
2. Incident in Defendant's Cell on November 3, 2015
(Counts 3, 4, and 5)
Shortly after his shift began at 10:00 p.m. on November 3, 2015, CO John Thich was conducting security checks of the cells. Doors on the cells had been mechanically locked at 9:15 p.m. When CO Thich arrived at the cell occupied by defendant and Santana, he saw that the light was on. CO Thich looked through the window and saw defendant was in a straddle position on top of Santana. The inmates were about three feet from the door and their heads were pointing toward the door. Defendant was choking Santana, who was lying in a pool of blood and had blood coming out of a wound on his neck. After he ordered defendant to get off of Santana and lie on the ground, CO Thich radioed central control for medical assistance. The officer told Santana to apply pressure to his neck, but he was too disoriented to do so.
Defendant had blood on his clothing and hands and he "looked . . . like he was tired, like normally, what you would see when someone was in a fight." He opined that the blood on defendant's shirt was the result of Santana "putting up a fight." Defendant had a bleeding wound on the side of his face as if he had been punched and some scratches on his head. According to CO Thich, there was not enough blood from these wounds to have contributed to the pool of blood on the floor. Defendant had some blood on his shoes, knees, and legs and "a lot" of blood on his hands.
CO Thich did not see defendant holding a towel to Santana's neck or a blood-soaked towel inside the cell. The officer did not see any object in defendant's hands or defendant throw an object. There was no one else in the cell with defendant and Santana and they had been alone in the cell for about an hour preceding CO Thich's arrival.
CO Rogelio Perez responded to the call for backup. After "a few" orders, defendant submitted to handcuffs, was taken out of the cell, and was placed in the shower area to secure him. Santana was on his back on the ground and gasping for air. Santana had two or three puncture wounds on the side of his stomach and two on his neck. The wounds on his side and the wound on the back of his neck were actively bleeding, but the wound on the side of his neck was not. CO Perez used paper towels to apply pressure to Santana's neck to stop the bleeding.
Barbara Ann Dillon testified that she had been a registered nurse for 41 years and a chiropractor for 34 years. She was currently employed in the emergency room at Salinas Valley State Prison. She had been working at the prison for five years. Her experience also included work in other hospital trauma centers and emergency rooms. She had treated more than 100 inmates for wounds caused by inmate-manufactured weapons. Most of the time she can determine whether the wound was caused by a dirk or by a slicing weapon like a knife. She explained that puncture wounds are caused by a dirk or ice pick while broader wounds are caused by a knife.
Dillon was on duty on November 3, 2015. She evaluated defendant after the incident in his cell. She noted that he had dried blood on his face, both sides of his arms, and the front of his legs. Defendant did not have any wounds that would have contributed to the blood on his face and shirt. Dillon helped contain Santana's bleeding, started an IV, and placed a cervical collar on him. Santana was taken to a hospital for further treatment.
Dillon was asked to render her opinion about Santana's wounds as shown in photographs. She based her opinion on her observations and experience. One of Santana's wounds was on the left side of his ribs where his lung and heart are located. Santana had one puncture wound and some other wounds, but Dillon could not determine if they were caused by a knife-type weapon or a dirk. She explained that stabbing with a narrow knife could cause a puncture wound. She testified that one would need to examine the wound to determine its depth. There also appeared to be a knife cut around the throat. According to Dillon, this type of wound could be critical due to the danger of puncturing the trachea, which could result in the victim choking to death on blood.
Dillon was asked to interpret the medical report concerning Santana's injuries. Based on this report, the neck wound was deep and nearly hit the carotid artery. She could not determine from the photographs the angle or depth of the neck wound and she stated that only the examining physician could do so. Dillon testified that the report indicated that the jugular vein in Santana's neck was cut. She stated that this type of cut could lead a person to bleed to death if he did not receive medical attention. She also stated that the vagus nerve, which is close to the carotid artery, was cut. Dillon opined that if the carotid artery was cut, the person would bleed to death in 20 to 30 minutes, depending on the nature of the wound.
CO Steven Newcomb took photos of Santana at the hospital. Santana appeared to have a puncture wound on the side of his body and a slice wound on the left side of his neck. Santana had a puncture-type wound on his chest and appeared to have a defensive wound on his index finger. There were also three puncture wounds on the left side of his body. He did not document any wounds on Santana's head. According to CO Newcomb, it appeared that two different types of weapons were used.
CO Joshua Peffley from the Investigative Service Unit (ISU) investigated the incident the following day. He explained that after defendant and Santana had been removed from the cell the previous night, a "boot lock" was placed on the cell. Only ISU staff could unlock this type of lock. When CO Peffley unlocked the cell, he observed a large puddle of blood that was approximately 12 inches by 12 inches. There was blood splatter on a curtain, a fan, a pair of prescription glasses, and on the toilet. There was also a towel "saturated with blood" and a bloody piece of dental floss. Based on dozens of in-cell attack investigations, CO Peffley stated that the amount of blood was greater than normal.
COs Peffley and Salgado spent three hours in the cell. After photographing the evidence, they searched the cell, which measured 12 feet by eight feet. They searched the shelving units, the mattresses, and the floor, but they did not find anything that appeared to be a weapon.
The next day, CO Peffley was notified that another officer had found a weapon in defendant's cell when he went to retrieve defendant's property. CO Peffley returned to the cell and he immediately saw an inmate-manufactured weapon under the lower bunk bed. The weapon appeared to be "steel on the top, sharpened to a point, with melted plastic wrapped around the bottom acting as a handle portion." The blade, which had blood on it, was approximately three inches long. According to CO Peffley, the blade appeared to be sharpened to "slice something" and the point of the weapon could "puncture something." He also thought the weapon was "capable of killing somebody."
CO Peffley had no idea how the knife got in the cell. He noted that there was sufficient room under the cell door to slide an item like the weapon. According to CO Peffley, inmates commonly slide items under the door. They refer to the practice as "fishing." They use string to tie items, such as narcotics, weapons, phones, and notes, which are then sent back and forth between cells. An inmate could also get rid of a weapon by tossing it on the floor and kicking it under the cell door. The space under the cell door was no more than one half inch. Though neither defendant nor other inmates had access to the inside of the cell after CO Peffley had searched it the previous day, dining workers and other inmates released to the yard could have thrown an item under the cell door. CO Peffley believed that another inmate had access to the weapon that was used to attack Santana. His theory was that defendant used the knife to stab Santana and slid it under the cell door into the day room. The following morning another inmate picked it up and slid it back into defendant's cell.
3. Incident Involving Weapons in the Bibles
on November 17, 2015 (Count 6)
CO Daryl Schlitz worked in the administrative segregation (ad-seg) unit at Salinas Valley State Prison. The ad-seg unit houses inmates who have been accused of a crime or who need to be segregated from the general population for safety reasons. CO Schlitz characterized the ad-seg unit as a mini prison within the prison. When an inmate is admitted to the ad-seg unit, his personal property is searched.
On November 17, 2015, defendant was transferred from one ad-seg unit to the ad-seg unit staffed by CO Schlitz. According to prison safety procedures, after defendant was "strip-search[ed]," CO Schlitz searched his personal property, including two Bibles. CO Schlitz used a metal detector to search the Bibles because weapons are easily hidden inside the bindings or the back part of a book. After the metal detector sounded, CO Schlitz looked inside the binding, saw a weapon pointed upwards, and pulled out the weapon. CO Schlitz checked the other Bible and found another weapon. Both weapons appeared to be made of stainless steel. The first weapon was approximately eight inches long and the second was five inches long.
While CO Schlitz was searching defendant's Bibles, defendant was in a holding cell directly in front of him. After CO Schlitz found the second weapon, he said in a "kind of joking . . . [and] spontaneous" manner, " 'Hey, how many of these things you got? How many weapons have you got?' " Defendant replied, " 'Just the two.' "
According to CO Schlitz, inmates are allowed to have certain items in their cells. Large items, such as a television, are noted on the inmate's property card, but smaller items, such as books and personal paperwork, are not always included. Inmates know that they and their personal property will be searched when they enter the ad-seg unit. However, as CO Schlitz explained, inmates are searched all the time, but they still try and smuggle weapons. CO Schlitz did not advise defendant of his Miranda rights prior to questioning him about the weapons.
B. Defense Case
1. Incident in the Yard on April 23, 2014 (Counts 1 and 2)
Defendant testified that he was walking by himself on the track on April 23, 2014, when a fight broke out next to him. While Perez and Acosta were fighting, he was also attacked. Defendant did not see any objects in their hands and he did not have a weapon. Defendant fought back because he was being hit. The fight happened very quickly. Defendant heard the order to lie down, but he did not comply immediately because he was being attacked. When the COs used the pepper spray, the incident ended. Defendant could not explain how Acosta was stabbed. He had no explanation for why the weapons were near him.
2. Incident in Defendant's Cell on November 3, 2015
(Counts 3, 4, and 5)
Defendant testified that on November 3, 2015, Santana returned to the cell at around 9:00 p.m. after making a phone call. At that time, Santana had blood on the front of his shirt. Defendant tried to see what had happened to him, but Santana would not allow him to do so. Santana backed away from defendant when defendant tried to move his hand to see where the blood was coming from. Santana stood there bleeding for a few minutes and then fell to the floor. Defendant tried to move Santana, but Santana pushed him away. Since there was a lot of blood, defendant grabbed a towel and put it around Santana's neck to stop the bleeding. Defendant was stooped over Santana and Santana was between his legs. They remained in this position until the officers arrived.
Defendant denied that he stabbed Santana. He also denied ever seeing the weapon found in his cell the next day. Defendant and Santana had been cellmates for two or three months and they never had any arguments or fights.
On cross-examination, defendant stated that he did not call for help. He explained, "I'm trying to understand and trying to know what's going on before I do anything. And if he dies, well, he dies. I'm also going to die one day." He denied choking Santana. Defendant also denied getting rid of the knife by sliding it under the cell door.
3. Incident Involving Weapons in the Bibles
on November 17, 2015 (Count 6)
Defendant testified that he was moved from one ad-seg building to another, which is a distance of about half a mile, on November 17, 2015. He was handcuffed and was not carrying his personal property. He did not have access to his property for a couple of hours. When defendant was moved from the cell with Santana, an inventory listed the property that he had at that time. Defendant stated that he did not acquire any property from the time he was moved from his cell to the ag-seg unit. Defendant noted that the inventory had a "religious materials" section that could be checked off and a section for "other" items. The inventory of his property did not show that he had two Bibles in the religious materials section. Defendant denied having two Bibles and he denied ever possessing the objects found in the Bibles. He never admitted to a CO that he had the two weapons.
On cross-examination, defendant acknowledged that the "books" section was checked off on the inventory of his personal property. When defendant was asked whether Bibles would be included in the "books" section, defendant responded that "[n]o one confuses a Bible with a book." According to defendant, religious items are given special preference in prison and would not be included in the "books" section.
Defendant acknowledged that he had previously been convicted of one count of assault with a deadly weapon, three counts of assault with a firearm, one count of assault likely to cause great bodily injury, and one count of negligent discharge of a firearm.
II. Discussion
A. Motion to Consolidate
Defendant contends that the trial court erred when it granted the prosecutor's motion to consolidate the cases involving the incident in the yard in 2014 and the incident in the cell in 2015.
Section 954 states in relevant part that "[a]n accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offense, under separate counts, . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown" may exercise its discretion to sever the properly joined offenses. "Joinder is ordinarily favored because it avoids the increased expenditures of funds and judicial resources that may result from separate trials. [Citation.] Joinder, therefore, 'is the course of action preferred by the law.' [Citation.]" (People v. Simon (2016) 1 Cal.5th 98, 122 (Simon).)
When "the statutory requirements for joinder are met, a defendant must make a 'clear showing of prejudice' to establish that the trial court abused its discretion in denying the motion. [Citation.]" (Simon, supra, 1 Cal.5th at pp. 122-123, fn. omitted.) "We analyze severance questions by considering a case's specific facts. Whether a trial court abused its discretion in denying severance depends, thus, on the particular circumstances of each case. [Citation.] The factors we consider are as follows: (1) whether the evidence relating to the various charges would be cross-admissible in separate trials, (2) whether any of the charges are unusually likely to inflame the jury against the defendant, (3) whether a weak case has been joined with a strong case or with another weak case, and (4) whether one of the charges is a capital offense or the joinder of the charges converts the matter into a capital case. [Citation.]" (Id. at p. 123.)
Here, the statutory requirement for joinder has been met, because the offenses in both cases were in the same class. Both the 2014 incident and the 2015 incident involved custodial possession of a weapon (counts 1 and 5) and assault by a prisoner (counts 2 and 4).
We next consider whether defendant has shown prejudice. (Simon, supra, 1 Cal.5th at pp. 122-123.) As to the first factor, the Attorney General correctly concedes that the two cases were not cross-admissible, since the facts and evidence in the 2014 incident were unrelated to the facts and evidence in the 2015 incident. But the absence of cross-admissibility does not require severance. (People v. Manriquez (2005) 37 Cal.4th 547, 575 (Manriquez).)
Regarding the second factor, defendant argues that "[t]he evidence of the assault on Acosta with a deadly weapon was particularly inflammatory because it would lead the jury to infer improperly that [he] had a violent disposition, and would significantly undercut his defense that he didn't stab Santana, but was trying to stop his bleeding." We disagree. Both cases involved extremely serious assaults by means of inmate-manufactured weapons and resulted in life-threatening injuries to both victims. Thus, neither incident was more inflammatory than the other. (See Manriquez, supra, 37 Cal.4th at pp. 572, 575 [joinder of four murders which occurred on four separate dates during a year was not prejudicial].)
Defendant next argues that the third factor, that is, whether a weak case was joined with a strong case, favored severance. We reject this argument. In the 2014 case, several witnesses saw defendant and Perez attacking Acosta and two stabbing weapons were found near the scene. A witness saw Perez throwing a weapon. Based on this evidence, defendant was convicted of assault as an aider and abettor. In the 2015 case, defendant and Santana had been alone in the cell for about an hour when a witness saw defendant choking Santana, who was bleeding from a wound in his neck. As the Attorney General points out, there were evidentiary gaps in both cases regarding the weapons. The evidence failed to establish whether defendant personally used a weapon in the 2014 case. The evidence also failed to establish how a weapon appeared in defendant's cell a day after the assault. Thus, since neither case was stronger than the other, there was no danger that the jury would use evidence from one case to strengthen the prosecutor's case as to the other.
We need not consider the final factor discussed in Simon because none of the charges in the present case carried the death penalty. (Simon, supra, 1 Cal.5th at p. 123.)
Based on this record, we conclude that the trial court did not abuse its discretion when it granted the prosecutor's motion to consolidate the cases.
B. Sufficiency of the Evidence
Defendant next contends that the evidence is insufficient to support his convictions for assault by a state prisoner (count 3), attempted murder (count 4), and custodial possession of a weapon (count 5).
"Where, as here, a defendant challenges the sufficiency of the evidence on appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] A reviewing court must reverse a conviction where the record provides no discernible support for the verdict even when viewed in the light most favorable to the judgment below. [Citation.] Nonetheless, it is the jury, not the reviewing court, that must weigh the evidence, resolve conflicting inferences, and determine whether the prosecution established guilt beyond a reasonable doubt. [Citation.] And if the circumstances reasonably justify the trier of fact's findings, the reviewing court's view that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. [Citation.]" (People v. Hubbard (2016) 63 Cal.4th 378, 392 (Hubbard).)
Here, defendant and Santana were the only inmates locked into the cell at 9:15 p.m. About an hour later, CO Thich saw that defendant was straddling Santana and choking him. Defendant was not trying to assist Santana, who was lying in a pool of blood, and defendant did not have a towel in his hands. After defendant was ordered off Santana, Santana was gasping for air. There was a wound on Santana's neck that was actively bleeding. Santana also had another wound on his neck, wounds on the left side of his body, and a defensive wound on his hand. There was a large pool of blood in the cell and blood splatter on a curtain, a fan, a pair of glasses, and the toilet. Defendant, who appeared to have been in a fight, had a significant amount of blood on his hands and knees but no corresponding injuries. Given the length of time that defendant and Santana were alone together in the cell, Santana's extensive injuries, Santana's blood throughout the cell, and the officers' observations of defendant's conduct, there was extremely strong circumstantial evidence that defendant had choked Santana and inflicted the wounds on Santana that were caused by a sharpened instrument.
Defendant contends, however, that the prosecutor presented only evidence that defendant had an opportunity to commit the assault and the attempted murder. He further contends that the prosecutor failed to present evidence of motive or the weapon used to inflict Santana's injuries. We first note that the prosecutor is not required to prove motive, since it is not an element of the crime of attempted murder (People v. Houston (2012) 54 Cal.4th 1186, 1218), assault (see People v. McDaniel (2008) 159 Cal.App.4th 736, 749), or custodial possession of a weapon (see People v. Strunk (1995) 31 Cal.App.4th 265, 271-272). Nor is the prosecutor required to produce evidence of the particular weapon used by the perpetrator. Moreover, it is not our role to reweigh or draw contrary inferences from the evidence. (Hubbard, supra, 63 Cal.4th at p. 392.) Accordingly, we reject these contentions.
In sum, there was substantial evidence to support defendant's convictions for assault by a state prisoner, attempted murder, and custodial possession of a weapon.
C. Admissibility of Defendant's Statements Regarding Weapons
Defendant contends that he was in custody when he was questioned by CO Schlitz and was not advised of his rights under Miranda. Thus, he contends that the admission of his statement violated his Fifth, Sixth, and Fourteenth Amendment rights.
1. Background
Prior to CO Schlitz's testimony, defense counsel objected to the admission of defendant's statement to CO Schlitz that the weapons in the Bibles belonged to him. He argued that since defendant was in custody during the questioning, Miranda advisements were required. The prosecutor responded that the officer's questions were rhetorical and not intended to elicit an incriminating response. The trial court ruled that defendant's statement was admissible.
Here, defendant was being transferred from one ad-seg unit to another ad-seg unit. Pursuant to prison safety procedures, after defendant was "strip-search[ed]," he was placed in a holding cell in front of CO Schlitz. CO Schlitz then searched defendant's personal property and found two knives in his Bibles. CO Schlitz said in "kind of joking . . . [and] spontaneous" manner, " 'Hey, how many of these things you got? How many weapons have you got?' " Defendant replied, " 'Just the two.' "
2. Analysis
" 'In reviewing constitutional claims of this nature, it is well established that 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.' [Citation.]" (People v. Thomas (2011) 51 Cal.4th 449, 476.)
"Before a suspect may be subjected to a custodial interrogation, he must be advised that he has the right to remain silent, that his statements can be used against him and that he has a right to consult with or have an attorney present. [Citations.] In Mathis v. United States (1968) 391 U.S. 1, 4-5 . . . , the federal high court extended these safeguards to prison inmates." (People v. Fradiue (2000) 80 Cal.App.4th 15, 19 (Fradiue).) Lower courts have created an exception to Mathis "where the interrogation is conducted under circumstances where no restraint is placed upon the inmate over and above that associated with his prisoner status." (Fradiue, at p. 19.)
For example, in Cervantes v. Walker (9th Cir. 1978) 589 F.2d 424 (Cervantes), the defendant was incarcerated in county jail when a deputy decided to move him to another cell. (Id. at p. 426.) The defendant was directed to collect his personal property and he was then escorted to the jail library where he left his property on a table outside the library and entered the library. Pursuant to standard jail procedures when moving inmates, a deputy searched the defendant's property and found a matchbox containing a substance that he suspected was marijuana. (Id. at pp. 426-427.) The deputy entered the library, showed the contents of the matchbox to the defendant, and asked, " 'What's this?' " (Id. at p. 427.) The defendant answered, " 'That's grass, man.' " (Ibid.) The Cervantes court rejected the defendant's argument that Mathis requires Miranda warnings in all prison interrogations: "To interpret Mathis as Cervantes urges would, in effect, create a per se rule that any investigatory questioning inside a prison requires Miranda warnings. Such a rule could totally disrupt prison administration. Miranda certainly does not dictate such a consequence." (Cervantes, at p. 427.)
As the Fradiue court explained, "[i]n formulating an appropriate test in a prison setting, the [Cervantes] court recognized that the usual test of whether a reasonable person would have believed he was free to leave ceases to be useful. [Citation.] Obviously, the inmate is not free to leave. The question must therefore shift to whether some extra degree of restraint was imposed upon the inmate to force him to participate in the interrogation. Four factors are significant in this inquiry: (1) the language used to summon the inmate for questioning, (2) the physical surroundings of the interrogation, (3) the extent to which the inmate is confronted with evidence of his guilt, and (4) the additional pressure exerted to detain him." (Fradiue, supra, 80 Cal.App.4th at p. 20, citing Cervantes, supra, 589 F.2d at p. 428.)
The Cervantes test has been adopted by California courts. (People v. Macklem (2007) 149 Cal.App.4th 674, 687, 695-696; Fradiue, supra, 80 Cal.App.4th at pp. 20-21; People v. Anthony (1986) 185 Cal.App.3d 1114, 1122.)
" 'To determine whether prison officials have applied an additional restraint, further restricting an inmate's freedom and triggering Miranda warnings, courts must consider the totality of the circumstances surrounding the alleged interrogation.' [Citation.]" (Fradiue, supra, 80 Cal.App.4th at p. 21.)
As to the first Cervantes factor, defendant argues that the questioning in the present case did not occur at his usual cell and he was directed to go to the ad-seg unit. The record does not support his argument. He was not summoned for questioning, but was being transferred from one ad-seg unit to another. This transfer necessitated a routine body and property search prior to entering the second ad-seg unit. Under these circumstances, his encounter with CO Schlitz was merely incidental to ongoing prison activities.
Defendant argues that the second Cervantes factor supports a finding that he was in custody, because the physical surroundings of the interrogation were a "marked change" from his "usual surroundings." He points out that he was escorted while handcuffed, stripped nude, and searched prior to being placed in a cell. However, the restrictions on defendant's freedom of movement were no greater than the usual security measures for ad-seg inmates who were being transferred to another ad-seg unit. Since they were no more restrictive than the surroundings that defendant would have ordinarily experienced in prison, this factor also supports a finding that he was not in custody for Miranda purposes.
Under the third Cervantes factor, this court considers the extent to which defendant was confronted with evidence of his guilt. After CO Schlitz removed the weapons from the Bibles, he asked defendant in a joking and spontaneous manner, " 'Hey, how many of these things you got? How many weapons have you got?' " Thus, though defendant observed the evidence of his guilt, the officer's rhetorical questions were neither coercive nor hostile.
As to the final Cervantes factor, no additional pressure was exerted to detain defendant other than that associated with a transfer from one ad-seg unit to another.
Based on the totality of the circumstances, we conclude that no Miranda warnings were required during the search of defendant's property incident to his transfer from one ad-seg unit to another. Accordingly, the trial court did not err when it admitted defendant's statement.
Since we have concluded that defendant was not in custody for purposes of Miranda, we need not consider whether CO Schlitz's questions constituted an interrogation.
Defendant's reliance on People v. Elizalde (2015) 61 Cal.4th 523 (Elizalde) is misplaced. In Elizalde, the California Supreme Court held that any questions about gang affiliation when a defendant is booked into jail constitute custodial interrogation for Miranda purposes. (Elizalde, at pp. 527, 530-540.) Defendant claims that "this case presents the prison equivalent of the 'booking process,' where a person is admitted into a jail or prison." Not so. Here, defendant was being transferred from one ad-seg unit to another.
D. Admissibility of Expert Testimony
Defendant contends that the trial court erred when it admitted the expert testimony of Dillon.
1. Background
Dillon testified regarding her experience in the medical profession. After she began testifying regarding her evaluation of defendant, defense counsel objected and requested a sidebar. When the examination of Dillon resumed, the prosecutor asked her to explain some medical terminology in the treating physician's report, which she did. However, she was unable to state whether this terminology described Santana's injury as depicted in an exhibit and explained that only the treating physician could do so. Dillon also testified that if a person's jugular vein or carotid artery was cut, the person would bleed to death without medical attention. When asked how long it would take a person to bleed out if the carotid artery was cut, she opined, "Twenty minutes, half-hour. It depends." She also agreed that this opinion was "a real, real general guess," because it would depend on whether the wound was a nick or a slice. Dillon further testified that she was unable to testify regarding the depth of Santana's wounds and that her testimony on the nature of Santana's wounds was based on her experience.
After Dillon had testified and outside the presence of the jury, the parties summarized their statements at the sidebar after defense counsel had objected. Defense counsel stated that he had objected to Dillon's testimony, because the defense was not "given a CV of her expertise, as education and training. We didn't get a report as to what her suspected testimony might be so we objected to her -- any questioning outside of the actual 7219 [medical report] that we were given in discovery." The prosecutor summarized his efforts to obtain an expert witness. He had notified the defense that Dr. Kim Kumar would testify as an expert witness concerning the nature of Santana's injuries. The day before Dr. Kumar was scheduled to testify, Dr. Kumar notified the prosecutor that she would be unable to testify due to a family emergency. The prosecutor then contacted the surgeon who had treated Santana, but he was also unavailable. The prosecutor requested a one-day continuance, which was denied. The trial court stated that it had allowed Dillon to testify, because her testimony was very limited and the defense had notice of the medical subject that would be covered.
2. Analysis
Evidence Code section 720, subdivision (a) provides that "[a] person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert." Expert testimony is appropriate on subjects that are "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).)
" 'The trial court's determination of whether a witness qualifies as an expert is a matter of discretion and will not be disturbed absent a showing of manifest abuse. [Citation.] " 'Where a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes more to the weight of the evidence than to its admissibility.' " [Citation.]' [Citation.]" (People v. Nelson (2016) 1 Cal.5th 513, 536.)
Defendant argues that the trial court failed to exercise its discretion in qualifying Dillon as an expert witness. He also argues that even assuming the trial court exercised its discretion, it abused its discretion. He asserts Dillon lacked the qualifications to render an expert opinion on the nature and severity of Santana's neck wounds and the time it would take to die from certain wounds. However, defendant did not object to Dillon's lack of qualifications to testify as an expert, as Evidence Code section 720 expressly requires. Instead, he objected to the lack of notice that she would be testifying. Thus, he has forfeited these issues. (Evid. Code, § 353; People v. Farnam (2002) 28 Cal.4th 107, 162 (Farnam).)
Even if defendant had objected to Dillon's qualifications to testify as an expert, the trial court would not have abused its discretion in qualifying her as an expert witness. "Error regarding a witness's qualifications as an expert will be found only if the evidence shows that the witness ' " 'clearly lacks qualification as an expert.' " ' [Citation.]" (Farnam, supra, 28 Cal.4th at p. 162.) Here, Dillon testified that she had worked as a registered nurse for 41 years, as a chiropractor for 34 years, and as a nurse at the prison for the past five years. Her past medical experience also included working in trauma centers and emergency rooms. More importantly, Dillon had treated more than 100 inmates for wounds caused by inmate-manufactured weapons. Thus, defendant has failed to establish that Dillon clearly lacked the qualifications to testify as an expert regarding the nature and severity of Santana's injuries, her interpretation of language in the medical report describing the injuries, and her opinion of the effects of certain types of injuries.
Defendant next contends the trial court erred when it failed to instruct the jury on expert testimony pursuant to CALCRIM No. 332.
CALCRIM No. 332 provides in relevant part: "(A witness was . . .) allowed to testify as [an] expert[] and to give . . . opinion[s]. You must consider the opinion[s], but you are not required to accept [them] as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert's knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence."
When a witness testifies as an expert, the trial court has a sua sponte duty to instruct the jury on the weight to be given expert testimony. (§ 1127b; People v. Mateo (2016) 243 Cal.App.4th 1063, 1072.) " '[T]he erroneous failure to instruct the jury regarding the weight of expert testimony is not prejudicial unless the reviewing court, upon an examination of the entire cause, determines that the jury might have rendered a different verdict had the omitted instruction been given. [Citations.]' " (People v. Lynch (1971) 14 Cal.App.3d 602, 610.)
Here, though the prosecutor did not offer Dillon as an expert witness, Dillon testified regarding her medical training and experience. Based on these qualifications, she testified regarding Santana's injuries, the interpretation of a medical report, and her opinion as to the effects of certain injuries. Thus, the trial court erred when it failed to instruct the jury pursuant to CALCRIM No. 332.
However, the jury would not have rendered a different verdict had the trial court given the omitted instruction. The trial court did not identify Dillon as an expert witness and her training and experience were briefly summarized. Accordingly, an instruction that would have focused the jury's attention on her qualifications and "the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion" would have provided little assistance to the jury. Moreover, the trial court instructed the jury pursuant to CALCRIM No. 333 regarding the weight it must give any opinion testimony, that it must consider the believability of the witness, that it must consider the opportunity of the witness to perceive the matters that formed the basis of the opinion, and the reasons for the opinion. The trial court also instructed the jury that it was not required to accept any opinion and must decide what weight, if any, to give the opinion. In addition, the trial court instructed the jurors pursuant to CALCRIM No. 226, which told them that they were the sole judges of "the credibility or believability of the witnesses," that the testimony of each witness must be judged by the "same standards," and that they were to "[c]onsider the testimony of each witness and decide how much of it you believe." We presume the jury understood and followed the instructions the trial court gave pursuant to CALCRIM Nos. 333 and 226. (See People v. Butler (2009) 46 Cal.4th 847, 873.) Thus, the trial court's failure to instruct pursuant to CALCRIM No. 332 was not prejudicial.
Pursuant to CALCRIM No. 333, the trial court instructed the jury: "[W]itnesses who were not testifying as experts gave their opinions during the trial. You may, but are not required to, accept those opinions as true and accurate. You may give the opinions whatever weight you think is appropriate. Consider the extent of the witness' opportunity to perceive the matters on which his or her opinion is based, the reasons the witness gave for any opinion, and the facts or information on which the witness relied in forming that opinion. [¶] You must decide on whether information on which the witness relied was true and accurate. You may disregard all or any part of an opinion that you find unbelievable, unreasonable, or unsupported by the evidence."
E. Prosecutorial Misconduct
Defendant also contends that the prosecutor committed multiple acts of misconduct.
" ' "The applicable federal and state standards regarding prosecutorial misconduct are well established. ' "A prosecutor's . . . 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. Gray (2005) 37 Cal.4th 168, 215-216.) "A prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence, including reasonable inferences or deductions that may be drawn from the evidence. [Citation.]" (People v. Ledesma (2006) 39 Cal.4th 641, 726.) "When the issue 'focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' [Citations.]" (People v. Cole (2004) 33 Cal.4th 1158, 1202-1203.) " 'In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]' [Citation.]" (People v. Brown (2003) 31 Cal.4th 518, 553-554.)
In order to preserve a claim of prosecutorial misconduct on appeal, " ' "a defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the improper argument." ' [Citation.]" (People v. Mendoza (2016) 62 Cal.4th 856, 905.) Defendant acknowledges that trial counsel failed to make timely objections. Thus, he contends that trial counsel's failure to object to these alleged instances of misconduct denied him the effective assistance of counsel.
To prevail on an ineffective assistance of counsel claim, a defendant must show that trial counsel's performance was deficient and that " 'counsel's deficiencies resulted in prejudice, that is, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." [Citation.]' [Citation.]" (People v. Lopez (2008) 42 Cal.4th 960, 966.)
" 'In determining whether counsel's performance was deficient, a court must in general exercise deferential scrutiny . . .' and must 'view and assess the reasonableness of counsel's acts or omissions . . . under the circumstances as they stood at the time that counsel acted or failed to act.' [Citation.] Although deference is not abdication [citation], courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight." (People v. Scott (1997) 15 Cal.4th 1188, 1212.) "[T]here is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' [Citation.]" (People v. Lucas (1995) 12 Cal.4th 415, 437.) The failure of counsel to object to evidence or statements made by the prosecutor during argument is seldom a successful basis for reversal of a conviction on ineffective assistance grounds. (People v. Centeno (2014) 60 Cal.4th 659, 675.) This court must reject a claim of ineffective assistance of counsel "if the record sheds no light on why counsel acted or failed to act in the manner challenged unless (1) counsel was asked for and failed to provide a satisfactory explanation or (2) there simply could be no satisfactory explanation. [Citation]." (People v. Burgener (2003) 29 Cal.4th 833, 880.)
1. Challenges to Defendant's Credibility
Defendant argues that the prosecutor committed misconduct when he accused defendant of lying on the stand and offered his personal opinion to the jury that defendant is the type of person who would lie on the stand.
CO Thich testified that he saw defendant straddling Santana and choking him. The officer did not see a towel in defendant's hands. A photograph of a bloody towel was admitted into evidence. Defendant testified that he used the towel to try to stop Santana's bleeding. On cross-examination, the prosecutor asked defendant, "That towel that you saw . . . in the photo, and you're just using that as . . . making the stuff up about you using the towel; isn't that correct?"
During closing argument, the prosecutor stated: "We toss softballs to see if they'll lie about the small stuff. Blood on Acosta's shorts. And his response was, 'I don't know what that is. I don't know if it's blood.' I said, 'What about those stab wounds to Acosta on the yard?' And he said, 'Looked like scratches.' . . . [I]f somebody is not true in their testimony about something small that really doesn't matter, then, why are they going to tell the truth about things that are really big, like, did you cut this guy's neck? Of course they're not going to tell you the truth. There's bias to lie." The prosecutor also argued that "the things [defendant] can't explain, he just denies they happened."
" 'A prosecutor may comment upon the credibility of witnesses based on facts contained in the record, and any reasonable inferences that can be drawn from them, but may not vouch for the credibility of a witness based on personal belief or by referring to evidence outside the record' [Citation.]" (People v. Peoples (2016) 62 Cal.4th 718, 796.)
Here, there was nothing improper in the prosecutor's question to defendant or his argument to the jury. Given the evidence that defendant and Santana were alone in the cell for almost an hour, the presence of Santana's blood throughout the cell, Santana's extensive injuries, and CO Thich's observations of defendant's conduct, it could reasonably be inferred that defendant's testimony was not credible. Thus, the prosecutor's question challenging defendant's credibility was based on the facts in the record. As to the prosecutor's argument, he was urging the jury to determine whether defendant was credible as to certain portions of his testimony and thus determine whether he was credible as to the central issues in the case. The prosecutor did not base either the question or his argument on facts outside the record or his personal belief. Since there was no misconduct, trial counsel was not ineffective when he did not object to either the question or this portion of the prosecutor's argument.
Defendant also contends that the prosecutor committed misconduct when he "expressed his personal opinion that prison inmates are not credible . . . ."
Here, the prosecutor referred to defendant's six prior felony convictions and further argued: "And the reason we tell you about that is not to say anything to do with whether he's a bad person. It's for the truth. Think about people who have been convicted of felonies. Are they people that you're likely to trust, or are they people that are going to tell you the truth? That's something for you to decide. I'm not saying, automatically, people who are felons are going to lie to you about things, but if they're committing 'crimes of moral turpitude,' we call it, that do wrong, then lying seems to be in the scheme of things, probably pretty light. . . . [I]f you're using semi-automatic weapons to assault people, lying about something, that's . . . almost like a walk in the park." The prosecutor later argued that "these are people who commit crimes to get into prison, so they're not the most honest people in the world."
To the extent that the prosecutor expressed his personal opinion when he argued that all inmates are not trustworthy or honest, he committed misconduct. But trial counsel could have made a reasonable tactical decision not to object. " 'Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach . . . .' [Citation.]" (People v. Smith (2007) 40 Cal.4th 483, 512.) Trial counsel could have reasonably concluded that an objection would have prompted the prosecutor to focus more on defendant's prior convictions to impeach his credibility. Thus, defendant's ineffective assistance claim is unavailing.
2. Questions Asking Defendant to Comment on Truthfulness of COs
Defendant next contends that the prosecutor improperly asked him on cross-examination to comment on the truthfulness of the COs who testified.
On cross-examination, the prosecutor asked defendant if he had "[a]ny problem with" CO Thich. After referencing CO Thich's testimony which contradicted defendant's testimony, the prosecutor asked defendant, "So can you think of any reason why he would come in and make that up?"
Later, the prosecutor asked defendant if he had any problems with CO Schlitz. Defendant responded that he did not and that he respected every CO. The prosecutor then asked, "Well, is it respecting an officer to come in and basically say that he lied about what he said?" Defendant answered, "It would be a lack of respect." The prosecutor stated that CO Schlitz testified that defendant admitted to owning the two knives found in the Bibles. Defendant agreed that this was CO Schlitz's testimony, but denied saying it. The prosecutor asked, "So you're saying that he's lying in here, and you've never said that." Defendant replied, "Yes."
The prosecutor also asked defendant why CO Schlitz would risk his career, perjure himself, and lie. Defense counsel's objections to these questions were sustained.
During closing argument, the prosecutor argued, "And [defendant] gets up and, you know, calls the corrections officers liars; tells you how they're planting evidence, not telling the truth."
"[C]ourts should carefully scrutinize [a prosecutor's] 'were they lying' questions in context. They should not be permitted when argumentative, or when designed to elicit testimony that is irrelevant or speculative. However, in its discretion, a court may permit such questions if the witness to whom they are addressed has personal knowledge that allows him to provide competent testimony that may legitimately assist the trier of fact in resolving credibility questions." (People v. Chatman (2006) 38 Cal.4th 344, 384 (Chatman).) The Chatman court also stated that "[a] defendant who is a percipient witness to the events at issue has personal knowledge whether other witnesses who describe those events are testifying truthfully and accurately. As a result, he might also be able to provide insight on whether witnesses whose testimony differs from his own are intentionally lying or are merely mistaken." (Id. at p. 382.)
Here, defendant testified as a percipient witness and had personal knowledge of the events in the cell when CO Thich made his observations. He also had personal knowledge of whether he made a statement after CO Schlitz found the weapons in his Bibles. Since defendant's testimony was in conflict with that of the COs, the prosecutor properly sought to give him the opportunity to explain whether the COs were "intentionally lying or [were] merely mistaken." (Chatman, supra, 38 Cal.4th at p. 382.) Thus, trial counsel was not incompetent for failing to object to the prosecutor's questions and argument.
Defendant argues that the present case is distinguishable from Chatman. He asserts that, unlike in Chatman, he did not accuse the witnesses of lying on direct and there was no evidence that he knew the witnesses well enough to offer relevant testimony on their credibility. We do not read Chatman's holding so narrowly. People v. Tafoya (2007) 42 Cal.4th 147 (Tafoya) provides support for our interpretation. In Tafoya, the court considered whether the prosecutor committed misconduct by cross-examining the defendant as to whether the codefendant and an eyewitness lied when they testified. (Id. at p. 177.) Relying on Chatman, the Tafoya court reasoned: "[B]y choosing to testify, defendant put his own veracity in issue. . . . The prosecution's questions allowed defendant to clarify his position and to explain why codefendant Wynglarz or eyewitness Gattenby might have a reason to testify falsely. The jury properly could consider any such reason defendant provided; if defendant had no explanation, the jury could consider that fact in determining whether to credit defendant's testimony. (People v. Chatman, supra, 38 Cal.4th at p. 383.) Thus, the prosecution's questions in this case 'sought to elicit testimony that would properly assist the trier of fact in ascertaining whom to believe.' (Ibid.) There was no prosecutorial misconduct." (Tafoya, at p. 179.) In Tafoya, as in the present case, the defendant did not accuse the witnesses of lying on direct and there was no evidence that he knew the eyewitness.
3. Statements Vouching for COs' Credibility
Defendant also argues that the prosecutor's statement to the jury that COs would not lie and risk their careers and that COs are inherently more trustworthy than prison inmates constituted misconduct.
The prosecutor argued that CO Schlitz "has no animosity, no reason that we know to make anything up. In 23 years on the job, why?" He later argued, "Credibility of witnesses, whether to believe the witness or not, that's for the jury to determine. You're the final judges of who is telling you truth, who has a bias, and what story makes sense. [¶] Officers with many years experience versus a defendant with six felony convictions." He also argued, "[T]hese are people who commit crimes to get into prison, so they're not the most honest people in the world. So you turn around, and you throw down a bunch of corrections officers, who are just trying to do their jobs, trying to keep us safe from people like that." The prosecutor stated that it was "disrespectful" to accuse COs of "planting evidence and lying."
" 'A prosecutor may make "assurances regarding the apparent honesty or reliability of" a witness "based on the 'facts of [the] record and the inferences reasonably drawn therefrom.' " [Citation.] But a "prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record." [Citation.]' [Citation.]" (People v. Redd (2010) 48 Cal.4th 691, 740 (Redd).)
Here, CO Schlitz testified he had worked as a correctional officer for 23 years and defendant testified that he did not know CO Schlitz. The prosecutor then argued that CO Schlitz was credible because he would not jeopardize his career by lying and he had no motive to lie about defendant's conduct. Thus, the prosecutor's argument regarding CO Schlitz's credibility was based on the evidence and reasonable inferences therefrom, not on his personal knowledge or belief. (See Redd, supra, 48 Cal.4th at pp. 740-741 [prosecutor did not improperly vouch for the credibility of witnesses by referring to a " 'police woman doing her job' " and another officer " 'willing to do [his job] properly' "].) (Id. at p. 741.) Accordingly, since there was no prosecutorial misconduct as to these comments, trial counsel was not ineffective for failing to object to them.
Regarding the prosecutor's comments that COs are more honest than inmates, the prosecutor engaged in misconduct to the extent he expressed his personal opinion. As previously stated, trial counsel could have reasonably concluded that objections to these comments would have resulted in the prosecutor focusing on defendant's prior felony convictions. Accordingly, defendant has failed to show trial counsel was incompetent as to these comments.
4. Violation of Trial Court's Order
Defendant argues that the prosecutor committed misconduct when he violated the trial court's order not to elicit testimony from Acosta regarding the reasons why Acosta was refusing to testify.
On the second day of trial, Acosta appeared to testify. Defense counsel objected to his testimony because Acosta was not disclosed as a witness in the prosecutor's trial brief. The prosecutor stated that he was intending to call Acosta as a witness because he was the victim of the assault. In the event that Acosta refused to testify, the prosecutor wanted to lay the foundation to call an expert witness to explain why Acosta was not testifying. The trial court was concerned about opening the door to expert testimony when the defense had not received notice of an expert witness. Defense counsel argued that by "having Mr. Acosta take the stand without us having notice, and, then . . . , being allowed to call an expert to be able to say, well, he doesn't testify, because he's afraid, that sheds a more negative light on my client." The trial court ruled, "What I'm inclined to do is allow Mr. Acosta to testify, as he chooses, or chooses not to testify. No one seems to quite know. But that ruling does not, in any way, in my mind, allow the District Attorney to, then, follow up with an expert that has not been disclosed, and the subject matter of that expertise has not been disclosed."
The prosecutor called Acosta to the stand and asked him about the fight in the yard. Acosta answered, "Just no comment. I plead the Fifth. I don't even know why I'm here." Acosta then refused to answer most of the prosecutor's questions, stating, "I plead the Fifth" and "no comment." The prosecutor asked Acosta whether "part of surviving means don't testify, don't say anything, what happened to you?" The prosecutor asked whether the reason Acosta would not testify was that he would be "subject to attack from other people, if . . . they know you've testified." Acosta was also asked, "if you're attacked, the way to survive is just to not say a word, and let bygones be bygones; correct?" and "Because if you do testify, they'll attack you again, and this time maybe make it real?" During closing argument, the prosecutor told the jury "[y]ou take the stand, you're a rat. Acosta knows that. You just have to take that stabbing. . . . So, you know, the best I'm going to get out of the guy is to show you, that's what an inmate who's attacked has to go through."
"It is misconduct for a prosecutor to violate a court ruling by eliciting or attempting to elicit inadmissible evidence in violation of a court order. [Citation.]" (People v. Crew (2003) 31 Cal.4th 822, 839.)
Here, the prosecutor did not violate the trial court's ruling. The trial court ruled that the prosecutor could not call an expert witness to give an opinion explaining Acosta's testimony. The trial court did not rule that the prosecutor was prevented from questioning Acosta regarding why he refused to testify. Thus, there was no misconduct by the prosecutor in his questioning of Acosta.
Defendant also argues that the prosecutor suggested that Acosta was afraid of him, which was not based on any evidence in the record. We disagree. The prosecutor's questions generally asked Acosta if he wanted to survive in prison and whether he was concerned about attacks from "other people" if he testified. To each of these questions, Acosta responded "no comment." Thus, neither the question nor Acosta's response suggested that he was afraid of defendant.
In sum, since the prosecutor's questions did not elicit inadmissible evidence, trial counsel was not incompetent when he failed to object to them.
5. Questions Implying that Defendant was in a Gang
Defendant argues that the prosecutor improperly implied that he was a gang member and carried out the fight in the yard on behalf of the gang.
During cross-examination of defendant, the prosecutor told him that he and Perez started the fight and that they "were sending a message to Acosta. It was a 'hard check,' wasn't it?" Defendant responded, "I don't know." The prosecutor then asked, "You don't know if that was a hard check that you and Perez laid on Acosta?" Defendant replied, "I wasn't checking anyone." After the prosecutor asked defendant who ordered him and Perez to attack Acosta, the trial court sustained defense counsel's objection. The following exchange occurred: "Q [prosecutor] You've learned the ins and outs of prison, haven't you? [¶] A [defendant] I don't know ins and outs. [¶] Q Well, isn't it true that there are people that they call 'shot callers'? [¶] A You know more than I do. [¶] Q People on the blocks who run the block, and they are the ones who order people to be assault? [¶] A No, not that I know of. [¶] Q That doesn't happen? [¶] A Well, I frequently see people fighting, but I don't know the reasons."
" 'It is improper for a prosecutor to ask questions of a witness that suggest facts harmful to a defendant, absent a good faith belief that such facts exist.' " (People v. Osband (1996) 13 Cal.4th 622, 695.)
The prosecutor's questions strongly implied that defendant was a gang member. Defendant argues that since there is nothing in the record suggesting that defendant had any connection to a gang or that he assaulted Acosta with Perez under orders from a shot caller, the prosecutor committed misconduct. But defendant has failed to establish that trial counsel was incompetent for failing to object. The prosecutor's questions were brief and did not expressly refer to a gang. Moreover, defendant denied "checking" anyone or knowing the meaning of "shot callers." Thus, trial counsel could have reasonably concluded that an objection would have emphasized this portion of defendant's testimony.
6. Misstatement of the Law on Premeditation and Deliberation
Defendant next contends that the prosecutor misstated the law by equating premeditation and deliberation with malice aforethought and by using misleading analogies.
The trial court instructed the jury on the law of premeditation and deliberation: "If you find the defendant guilty of attempted murder in Count 3, you must, then, decide whether the People have proved the additional allegation that the attempted murder was done willfully and with deliberation and premeditation. The defendant acted willfully if he intended to kill when he acted. [¶] The defendant, Pedro Alvarez, deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant, Mr. Alvarez, premeditated if he decided to kill before acting. [¶] The length of time the person spends considering whether to kill does not alone determine whether the intent to kill is deliberate and premeditated. [¶] The length of time required for deliberation and premeditation may vary from person to person and according to the circumstances. [¶] A decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated. [¶] On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time."
During closing argument, the prosecutor stated: "Mental state is formed before, and it's -- you have to form that before you're doing the act. It does not require deliberation or the passage of any particular time. Couple of examples: [¶] Baseball, I always like to talk about. You've got a pitcher, 60 feet, six inches away from the batter. He throws the ball. It's coming in there. The batter has to premeditate. The batter has to think about it. Am I going to swing at this thing? And he's premeditating. He's thinking about that. He's deliberating. It doesn't have to be a long time. [¶] A better example might be the running of the yellow light I talked about. You see that light turn yellow. You, kind of, quickly look. Where is the intersection? You look left and right, see if there are any people, bicycles, cops. You're thinking about the consequences. If I speed up, yeah, I'll get there two minutes quicker. I may get a ticket. But you weigh all that stuff and -- vroom [sound effect] -- off you go. Or you stop, and you think, a little too far away. You stop. You premeditate. You contemplated all the acts and what could go wrong with it, so that's all you need. Here, after you strangle -- or stabbed the guy and sliced his neck, then, you decide, better choke him out, 'cause he's not dying. That's a lot of premeditation. Plenty of time for it."
Defendant argues that the prosecutor erroneously equated premeditation and deliberation with malice aforethought (§§ 187, subd. (a), 188), that is, the intent to kill before the act, when he told the jury that "[m]ental state is formed before, and it's -- you have to form that before you're doing the act."
Murder is defined as "the unlawful killing of a human being, or a fetus, with malice aforethought." (§ 187, subd. (a).) Malice aforethought "may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (§ 188.)
"A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] 'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance. [Citations.] 'The process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . ." [Citations.]' " (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) " 'An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.' [Citation.]" (People v. Pearson (2013) 56 Cal.4th 393, 443.)
We disagree with defendant's characterization of the prosecutor's statements. The prosecutor made the introductory statement that "[m]ental state is formed . . . before you're doing the act." However, he never equated premeditation and deliberation with malice aforethought. In referencing the mental state, he then presented two analogies to explain the concepts of premeditation and deliberation. These analogies of the process of making a decision were consistent with the legal principles of premeditation and deliberation.
Defendant also argues that the baseball and yellow light analogies were erroneous examples of premeditation and deliberation. He asserts that a decision "to swing at a pitch is a decision that must be made almost reflexively," "is the result of 'unconsidered or rash impulse,' " and "is informed by years of training and experience . . . ." He further maintains that a driver's decision to stop at a yellow light is based not only on "his or her thought process seconds before the decision, but also on the driver's experience in similar situations."
" '[A] prosecutor is given wide latitude during argument' " and " 'counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.' [Citation.]" (People v. Wharton (1991) 53 Cal.3d 522, 567 (Wharton).)
Here, the prosecutor presented the baseball analogy as an example of someone who was carefully weighing considerations before making a decision. The prosecutor did not refer to the batter's decision as reflexive or akin to " 'unconsidered or rash impulse.' " He explained that the batter had to "think about it," decide whether he was "going to swing," was "thinking about that," and that the thought process did not have to be "a long time." These comments were consistent with the instructions on premeditation and deliberation.
The prosecutor also used the yellow light analogy to describe circumstances in which the driver makes a decision after considering various factors. The California Supreme Court upheld a similar analogy in People v. Avila (2009) 46 Cal.4th 680. In that case, the court stated: "Nor, contrary to defendant's assertion, did the prosecutor argue that 'the "cold, calculated" judgment of murder is the equivalent of deciding whether to stop at a yellow light or proceed through the intersection.' Rather, the prosecutor used the example of assessing one's distance from a traffic light, and the location of surrounding vehicles, when it appears the light will soon turn yellow and then red, and then determining based on this information whether to proceed through the intersection when the light does turn yellow, as an example of a 'quick judgment' that is nonetheless 'cold' and 'calculated.' He then immediately said, 'Deciding to and moving forward with the decision to kill is similar, but I'm not going to say in any way it's the same. There's great dire consequences that have a difference here.' " (Id. at p. 715.) Defendant argues that Avila is distinguishable, because the prosecutor added that the decision to kill differs from driving through a yellow light due to the consequences. We disagree. The distinction between the two cases concerned the consequences of, not the mental state required for, first degree murder. In both Avila and the present case, the prosecutor used the yellow light analogy as an example of making a quick decision.
Since the prosecutor did not engage in misconduct in his argument to the jury regarding premeditation and deliberation, trial counsel did not render ineffective assistance when he failed to object.
As to defendant's contention that the batter's and driver's decisions are the result of their training and experience, defendant has cited no authority that an imperfect analogy constitutes a misstatement of the law. In our view, both analogies fall within the wide latitude given to a prosecutor during closing argument. (Wharton, supra, 53 Cal.3d at p. 567.)
We also note that the trial court told the jury to base its decisions solely on the evidence and the jury instructions. The trial court also specifically informed the jury that if it believed that the attorneys' comments on the law conflicted with its instructions, the jury was required to follow the court's instructions. The jury is presumed to have understood and followed the trial court's instructions. (People v. Jackson (2016) 1 Cal.5th 269, 352.) --------
F. Cumulative Error
Defendant contends that he was deprived of a fair trial and due process by the cumulative impact of the errors in the present case. We have found that the trial court erred when it failed to instruct the jury on expert testimony pursuant to CALCRIM No. 332 and rejected his remaining claims. (People v. Stitely (2005) 35 Cal.4th 514, 560.) Thus, there is no prejudice to cumulate.
III. Disposition
The judgment is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.