Opinion
B161003.
11-13-2003
THE PEOPLE, Plaintiff and Respondent, v. SATOSHI ASAKURA, Defendant and Appellant.
Thomas A. Schaaf, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc J. Nolan and Tita Van Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Satoshi Asakura of assault with a deadly weapon by means of force likely to produce great bodily injury and making a criminal threat. (Pen. Code, §§ 245, subd. (a)(1); 422.) The trial court sentenced him to an aggregate term of two years in state prison. He appeals from the judgment and complains of prosecutorial misconduct. We affirm the judgment as modified.
Appellant also contends, respondent acknowledges, and we agree that the trial courts imposition of a concurrent term for his conviction of making criminal threats (count 2) constitutes an unauthorized sentence. The court found the acts underlying his count 1 and 2 convictions were part of an indivisible course of conduct pursuant to Penal Code section 654. Accordingly, appellants sentence on count 2 should have been stayed.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant and Kazuhide Murayama were roommates. Appellant repeatedly threatened that after he moved out he would kill Murayama. Appellant continued to threaten Murayama when they were no longer living together. One night, appellant arrived at the restaurant where Murayama worked and attacked him with a metal pipe. Murayama received bruises and abrasions. During the attack, appellant again threatened Murayama.
Murayama testified that appellant said: "`Dont think its over yet. [¶] This will make me go back to Japan."
Appellant testified in his defense that Murayama was the aggressor. He claimed Murayama threatened to kill him if appellant failed to appear at the restaurant that night. Upon seeing appellant arrive, Murayama threatened to kill him. Appellant was frightened and swung the pipe that he had brought for protection to keep Murayama away from him. He denied threatening Murayama at any time.
During appellants cross-examination, defense counsel objected at sidebar that the prosecutor was "making faces and laughing in front of the jury." The prosecutor apologized, stated her actions were "involuntary," and promised not to "offend counsel." The court thanked the prosecutor and cross-examination resumed. The defense made no additional objections concerning the prosecutors behavior prior to closing argument.
Counsel engaged in argument after the court instructed the jury. During closing argument, the prosecutor paraphrased the five elements of the crime of making a criminal threat as set forth in CALJIC No. 9.94. The prosecutor then argued: "This side note here states that it does not matter whether the defendant who threatened actually intended to carry out that threat. That doesnt matter. What matters is whats going on in the mind of the victim. If he, hearing that threat, is in fear, feels that its serious, feels that its a threat of great bodily injury or death, then thats how you prove that a criminal threat was made. [¶] Its not whats going on in the mind of the defendant. Its whats going on in the mind of the victim. A conditional threat. Such as if — lets see. `Dont think its over yet. `If you dont do something, then I will do something else. That is a conditional threat. And even that is a criminal threat. [& para;] Its not what we have in our case, though; so were not going to concern ourselves with that. In this case what we have is the threat `Dont think its over yet. And as I stated, the way to show that a criminal threat was made is entirely on the victims belief, the victims belief that this was a threat to be taken seriously. He took it as a threat. It was serious. The threat meant bodily injury or death."
CALJIC No. 9.94: ". . . [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A person willfully threatened to commit a crime which if committed would result in death or great bodily injury to another person; [& para;] 2. The person who made the threat did so with the specific intent that the statement be taken as a threat; [¶] 3. The threat was contained in a statement that was made verbally, in writing, or by means of an electronic communication device; [& para;] 4. The threatening statement on its face, and under the circumstances in which it was made, was so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat; and [¶] 5. The threatening statement caused the person threatened reasonably to be in sustained fear for his own safety. [¶] It is immaterial whether the person who made the threat actually intended to carry it out.
Defense counsel objected that the prosecutor was misstating the law. The court overruled the objection and the prosecutor proceeded with her argument.
DISCUSSION
Appellant contends the prosecutor committed reversible misconduct by making faces and laughing during appellants cross-examination and by misstating the requisite proof for making a criminal threat. Neither contention supports reversal.
We assume for the sake of argument that defense counsels objections were sufficient to preserve appellants claims of prosecutorial misconduct for appellate review. (Cf. People v. Ervin (2000) 22 Cal.4th 48, 100; People v. Hill (1998) 17 Cal.4th 800, 820 (Hill) [as a general rule a claim of prosecutorial misconduct cannot be raised for the first time on appeal unless the defendant objected to the alleged misconduct on the same ground and requested the jury be admonished to disregard the impropriety].)
A prosecutors rude and 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. (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643; People v. Hill, supra, 17 Cal.4th 800, 819.) A prosecutors conduct 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 trial court or the jury. (People v. Morales (2001) 25 Cal.4th 34, 44.)
Misconduct that infringes upon a defendants constitutional rights, mandates reversal of the conviction unless the reviewing court determines beyond a reasonable doubt that it did not affect the jurys verdict. (Chapman v. California (1967) 386 U.S. 18; People v. Hall (2000) 82 Cal.App.4th 813, 817, citing People v. Harris (1989) 47 Cal.3d 1047, 1083.) A violation of state law is only 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 disputed behavior. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Milner (1988) 45 Cal.3d. 227, 245.) In either case, only misconduct that prejudices a defendant requires reversal (People v. Fields (1983) 35 Cal.3d 329, 363), and a timely admonition from the court generally cures any harm. (See People v. Gallego (1990) 52 Cal.3d 115, 200.)
1. The Prosecutors Behavior During Appellants Cross-Examination.
Appellant argues that the prosecutors antics during his cross-examination testimony constituted misconduct. We find bad manners and unprofessional actions by the prosecutor in this case, but not prejudicial misconduct.
Appellant compares the prosecutors behavior to that of the deputy district attorney in Hill and maintains that his due process rights were similarly violated. In Hill, the California Supreme Court determined that the defendants murder trial was rendered fundamentally unfair by the prosecutors "outrageous and pervasive misconduct" at both the guilt and penalty phases. (People v. Hill, supra, 17 Cal.4th at p. 815.) Indeed, the Court remarked: "[T]he sheer number of instances of prosecutorial misconduct and other legal errors raised the strong possibility the aggregate prejudicial effect of such errors was greater than the sum of the prejudice of each error standing alone." (Id. at p. 845.)
By contrast, here the record reflects a single accusation by defense counsel, an apology by the prosecutor, and no finding of impropriety by the court. Cross-examination resumed without further objection, and the moment passed, not to be repeated for the remainder of the trial. That single gaffe, while ill-advised, indicated no outrageous or pervasive behavior that would render the trial fundamentally unfair.
2. The Prosecutors Closing Argument.
Appellant maintains the prosecutor misstated the law during argument. Specifically, he asserts the prosecutor argued that the People only had to prove the mental state of the victim beyond a reasonable doubt for the jury to convict appellant of making a criminal threat. Not so.
After summarizing the elements of the crime of making a criminal threat, the prosecutor focused on what constitutes an actual as opposed to a conditional threat. Considered in context, the prosecutor was attempting to distinguish the two types of threats and to explain to the jury that the instant case involved an actual threat. The prosecutors comments did not expressly or impliedly contradict her description of the elements. Nor did they otherwise cause the jury to believe the prosecution could forgo its burden of proof on all of the elements of the offense. We find no prosecutorial misconduct.
Appellant has failed to meet either the federal or state standard of prosecutorial misconduct, particularly in light of the trial courts instructions to the jury and the presumption the jury followed those instructions. We conclude that neither of the instances of alleged prosecutorial misconduct prejudiced appellant, whether considered separately or together.
DISPOSITION
The judgment is modified to stay sentencing on count 2 (making criminal threats) pursuant to Penal Code section 654. The clerk of the superior court is ordered to prepare an amended abstract of judgment and send it to the Department of Corrections.
As modified, the judgment is affirmed.
We concur: PERLUSS, P. J. and JOHNSON, J.