Opinion
F073361
04-27-2018
THE PEOPLE, Plaintiff and Respondent, v. IGNACIO AYALA, Defendant and Appellant.
Law Office of Nicco Capozzi and Nicco Capozzi, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. BF156073B)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Eric Bradshaw, Judge. Law Office of Nicco Capozzi and Nicco Capozzi, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant/appellant Ignacio Ayala appeals his conviction on one count of making criminal threats (Pen. Code, § 422) with an enhancement for the use of a firearm (§ 12202.5, subd. (a)). Defendant argues prosecutorial misconduct during closing arguments and the improper admission of evidence are sufficient bases to warrant reversal. For the reasons set forth below, we affirm.
All future statutory references are to the Penal Code, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of what appears to be difficulties between neighbors that spiraled out of control. The victim in this case, Oscar Ramos, and his family lived across the street from defendant's sister, Amalia. According to the victim, Amalia and her family regularly held loud parties and were difficult neighbors.
We recount the facts generally and from the perspective of the victim's testimony. To the extent additional facts are relevant to our analysis concerning the prosecutor's closing statements or the admission of evidence, we include those facts in our discussion.
Because defendant and his family share surnames, we generally refer to them by their first names. No disrespect is intended.
On May 28, 2014, the victim claims he was cleaning his garage when one of defendant's brothers, Raul, came by asking to borrow jumper cables. When the victim stated he had none, Raul, allegedly drunk, became belligerent. He and several family members then attacked the victim. The victim claimed defendant was present, although defendant testified he was working on a work release program at that time.
Early in the morning a few days later, on May 31, 2014, the victim's wife called 911 to report Amalia was intoxicated in public and revving the engine of her car. The police arrived and arrested Amalia. While in jail, Amalia called the phone number for her brother's phone and, in a recorded call, told the person who answered about her arrest and the fact her neighbors had called the police. The person who answered the phone responded, "Now it's war" and "I'm on my way over there."
Later in the day on the 31st, two cars pulled up in front of Amalia's house. Defendant, Raul, and Trinidad, another brother, got out of one of the cars. According to the victim, Raul was carrying a shotgun, while defendant and Trinidad possessed handguns. As the three approached, they yelled statements to the victim such as, "Your time's up. I'm going to kill you. I'm going to burn your house down." The victim and his elderly father fled into the house, where they huddled with his wife and children and called 911. The brothers fled and were apprehended shortly thereafter by police. No guns were found in the car at that time.
Defendant was subsequently charged with making a criminal threat and convicted by a jury. This appeal timely followed.
DISCUSSION
Defendant raises two core arguments. First, he claims the prosecutor made a series of 20 improper statements in her closing remarks that rise to the level of prosecutorial misconduct. Recognizing that no objections were made to these statements, defendant argues no waiver occurred or, in the alternative, any waiver constituted ineffective assistance of counsel. Second, defendant alleges the trial court wrongly permitted the introduction of evidence about two prior incidents involving potential criminal activity by defendant or his family. We consider each position separately. Alleged Prosecutorial Misconduct
Defendant's counsel functionally alleges that the prosecutor in this case made a full 20 improper statements during closing arguments that, as a whole, rendered the trial fundamentally unfair given that the core disputes centered on the credibility of various witnesses. In doing so, counsel provides no meaningful context to the contested statements, offers no meaningful citations to case law outside of a couple references to the ABA Standards for Criminal Justice and the ABA Code for Professional Responsibility, and generally fails to present any argument other than bare assertions that the statements are either (1) the personal opinion of the prosecutor; (2) impermissible vouching for the credibility of the witness; or (3) improper comments on matters outside the record. For reference purposes, we list the 20 specific contested statements below as identified by defendant's counsel:
Defendant never actually makes the argument that a fundamental unfairness arose. Rather, defendant merely lists the 20 contested statements and cites the general law regarding prosecutorial misconduct. The closest argument to error actually raised comes in defendant's argument that he received ineffective assistance of counsel. There counsel writes, "[H]ad the prosecutor not improperly bolstered her witnesses' credibility, vouched for those witnesses, repeatedly expressed her personal opinion and belief as to what the evidence showed, and disparaged defense and Ayala personally, there is a reasonable probability the jury could have returned a different verdict." As trial counsel conceded no individual statement warranted a new trial, we recognize appellate counsel's argument as one attacking the overall fairness of the trial.
Statement 1
"The Defendant is a liar."
Statement 2
"But the Defendant lied to you ...."
Statement 3
"... I do believe it was the Defendant ...."
Statement 4
"And we do know that Defendant went over there, and, in fact, the Defendant drove over there. He was in control. He drove his brothers over there. They obviously had grabbed their weapons before they [sic] in the car and drove over to the victim's house."
Statement 5
"[S]o of course those two witnesses are going to have a bias, they are going to have a reason to lie."
Statement 6
"He really felt that way because it actually happened."
Statement 7
So the Defense is trying to say what occurred on May 28th never happened. Well, of course it did."
Statement 8
"[C]onveniently, all had kind of the same excuse."
Statement 9
"I think the part I love the most about their story, too, is when Angie says, 'Yes, we just - we went over there to check on the kids,' so innocently. But, yet, she never did. She never saw the adult supervising them. So, clearly, that was a story. Because that's not why they went over to the neighborhood. They did not go there to innocently check on the children. They went over there because they were pissed off because their sister was arrested and they wanted to confront the victim."
Statement 10
"... Defendant is telling you that that's the whole reason he needed to get out of there so quickly after he was innocently there trying to check the kids, which we know he wasn't there to do that."
Statement 11
"I wanted to corroborate that, and that's exactly what I did."
Statement 12
"And from there, they went over to the neighborhood, of course, as we know, to confront the victim."
Statement 13
"We know the real reason they actually went to the neighborhood. Why they pulled up quickly, got out of the car, approached the victim and his father, and started yelling threats while they were armed, to the victim"
Statement 14
"He goes along with this story that he and his family members had made up that they were going over there on [sic] check on the children."
Statement 15
"... [T]he officer ...has obviously no reason to lie ...."
Statement 16
"[S]he only admitted one of the photo lineups. Well, there was more than one ...."
Statement 17
"Well, I think that's why her identification of him is so reliable and believable ... So I think the fact that he is a stranger to her, she'll never forget his face."
Statement 18
"Now to corroborate the fact that that actually happened, which I'll submit to you that Mr. Ramos, Jr. is an honest and credible witness ...."
Statement 19
"And as I go into it a little bit later, but you can see in the jail call that the male voice, who I believe to be the Defendant, but, of course, as you know, she has a bias to be untruthful ...."
Statement 20
"And the fabricated stories that you heard from the Defendant and his family members are not reasonable and they're not true. And their version does not make any sense at all."
Looking at these excerpts in the context of the trial's structure, we note that only two, statements 18 and 19, arise from the prosecutor's initial closing argument. The remaining 18, although presented out of order, track directly to the prosecutor's rebuttal closing remarks, made after defendant's trial counsel offered her closing remarks focusing on the claim that the victim in this case was potentially lying about the relevant incidents.
Standard of Review and Applicable Law
" 'Under California law, a prosecutor commits reversible misconduct if he or she makes use of "deceptive or reprehensible methods" when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant's specific constitutional rights - such as a comment upon the defendant's invocation of the right to remain silent - but is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action " 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.' " ' [Citations.] In addition, ' "a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion - and on the same ground - the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]" ' [Citation.] Objection may be excused if it would have been futile or an admonition would not have cured the harm. [Citation.]" (People v. Dykes (2009) 46 Cal.4th 731, 760 (Dykes).)
Where properly preserved, allegations of prosecutorial misconduct are reviewed, on the merits, de novo. (See People v. Fuiava (2012) 53 Cal.4th 622, 681.)
The Contested Statements Were Not Improper
As an initial matter, we note that defendant failed to object to any of the statements now contested on appeal. Defendant's arguments have thus been forfeited. (People v. Rangel (2016) 62 Cal.4th 1192, 1219-1220.) Contrary to defendant's position, we find no merit in defendant's claim that we should overlook any failure to object because there were so many errors any single objection would be futile. Trial counsel did not raise even a single relevant objection - to any individual statement, the cumulative effect of the statements, or any combination of the two - and, as such, has no factual basis to contend any objection would have been futile. Defendant's related argument, that potential objections "could" have caused the jury to grow frustrated with the defense, !(AOB 25)! is speculative. Further, as explained below, defendant's claims to the 20 specifically identified statements are also meritless.
We begin with statements 18 and 19, which exemplify many of the issues with defendant's positions. In both examples, defendant contends the prosecutor improperly bolstered her view of the case through the expression of personal opinion. However, viewing the statements in context - as shown below all contested statements reviewed are identified in bold - both contested portions were clearly made in the context of very specific statements about the evidence in the case.
Statement 18 arose in a discussion concerning whether to believe defendant actually made the threats attributed to him:
"The Defendant also yelled, 'I'm going to burn your house down to the ground.' Mr. Ramos, Jr. directly heard the statement coming from the Defendant. There was no question in his mind that this Defendant was making those oral statements. And, of course, as we know, along with his brothers, as well.
"Now, to corroborate the fact that that actually happened, which I'll submit to you that Mr. Ramos, Jr. is an honest and credible witness and person, but to corroborate the fact that that happened, we know from his wife that it did happen. She was there. She wasn't outside. She may have seen it a little bit differently because she was inside of the house and she saw part of the act through the window, but she heard the threats, as well. So it wasn't just a single witness who heard it. She heard the threats, as well. She heard yelling and she heard a male voice saying "I'm going to kill you and your family.
"And to also corroborate Mr. Ramos's testimony, she looked out the window and she saw the Defendant and his two brothers facing toward the house, and she saw all three of them with firearms. So as we know, Element Number 1 has been met." (Bold print added.)
Statement 19 arose in a similar discussion concerning the impact of a prior incident involving the victim and defendant's family and who to believe regarding a phone call about that incident:
"The Defendant had a motive. That's another reason I called Amalia to testify. And Angie to testify, as well. Who happened to be the Defendant's girlfriend and his sister. Well, we know he had a motive because they believed that the neighbor, Mr. Ramos, called the police on his sister, Amalia. We know that she was arrested. She was in front of her house, wasted, intoxicated in her car while her children were inside. She kicked an officer and she was arrested.
"When she was in jail, she even admitted she made phone calls to the Defendant's cell phone and she told him what had happened. That she was arrested. And I'll go into it a little bit later, but you can see in the jail call that the male voice, who I believe to be the Defendant, but, of course, as you know, she has a bias to be untruthful, says, "Oh, the neighbor, huh? I'm going to head over there." So they had an absolute reason and motive to head over to the neighborhood to confront the victim, because they were all angry that the victim called on Amalia and that she ended up being arrested and put in jail. That's the reason they were pissed off and angry and went over to the neighborhood to threaten him with the firearms. So the Defendant did have a motive." (Bold print added.)
Notably, at trial Amalia had testified that it was not defendant whom she was speaking to at the time of the referenced call, even though she called that person Junior, which is one way people refer to defendant.
Prosecutors have wide latitude in their closing arguments, provided the argument "amounts to fair comment on the evidence," including reasonable inferences or deductions drawn therefrom. (People v. Gamache (2010) 48 Cal.4th 347, 371 (Gamache).) And prosecutorial misconduct will not be found unless there is a "reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner." (Dykes, supra, 46 Cal.4th at p. 772.) In both of the examples above, the prosecutor was engaged in extended recitations, commentary, and review of the evidence elicited at trial and was tying that evidence to the elements of the charged offense or the factual and legal arguments presented by defendant at trial. Viewed in context, there is no reasonable likelihood a jury would have understood the comment as anything other than a reasonable commentary on the evidence. (See Gamache, supra, 48 Cal.4th at pp. 371-373 [finding commentary on relative ease in convicting one defendant and suggestion that the prosecutor was flabbergasted by argument that special circumstances should not be found true were both proper commentary on the evidence].) Moreover, the brief reference to the victim's honesty and credibility in statement 18 is sufficiently tied to the evidentiary discussion - meaning the fact of credibility was raised only in a discussion noting how the evidence independently corroborated the testimony - to avoid impropriety. (See People v. Seumanu (2015) 61 Cal.4th 1293, 1330 [" ' "[S]o long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the 'facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,' her comments cannot be characterized as improper vouching." ' [Citation.]".]
Indeed, looking broadly at all of the allegations made by counsel that the prosecutor improperly shared her opinion with the jury, we find none that, in context, exceed the bounds of reasonable commentary on the evidence. As one further set of examples, statements 1, 2, 14, and 15 are all part of the same extended commentary on the evidence, rebutting assertions that defendant's version of the facts were believable:
"Now, the Defendant told you a version of the story. Let's talk about the Defendant real quick. We know he was recently convicted of a crime of dishonesty. And as his own attorney had said, a Welfare and Institutions Code 10980 (c) (2), where someone is willfully and knowingly deceiving the Government for government assistance. The Defendant is a liar. [Statement 1] The Defendant, on a prior occasion, and even admitted to it because he has a conviction, lied and manipulated to the Government to receive a benefit.
"Now, what else is interesting about what the Defendant was saying is there's other things that show he continues to be a liar. He goes along with this story that he and his family members had made up that they were going over there to check on the children. [Statement 14] And I had asked him whether he had ever seen his brothers with firearms. He said, '[N]o.' And I specifically asked, 'Have you ever seen Raul with a firearm?' 'No. No. Of course not.' He said he's never seen Trinidad with a firearm. Well, I knew that not to be true. And I wanted to prove to you that he's a liar.
"So I called in Officer Patino, who you heard from today, who was involved in a situation in 2013 where he went out to the family's house and spoke to the Defendant. And the Defendant told him, 'Yeah, you know, my brother and I got in an argument, and my brother, Raul -' who we know is one of the three individuals in this case, '—went inside and got a rifle,
came out, pointed it right at me, and threatened me and said he was going to kill me.' Clearly, we can see a pattern in this family.
"But the Defendant lied to you [Statement 2] and said, 'Oh, no. I've never seen Raul with a gun.' Of course he has. Of course he has. And you know that from the officer, who has obviously no reason to lie, [Statement 15] and who came in and told you exactly what the Defendant had said to him two years ago...." (Bold print added.)
When counsel's excised portions of the testimony and the full context of the statements are considered, there is nothing unusual or improper about the prosecutor's argument. Upon review of statements 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 17, 18, 19, and 20, we do not find any statements that constitute anything more than reasonable commentary on the evidence or reasonable deductions therefrom. They do not rise to the level of providing improper opinion or vouching.
With respect to statement 11, counsel alleges the statement is "easily recognized" as vouching. The contested statement arose as the prosecutor explained why she called members of defendant's family to discuss their version of events, vis-à-vis the prosecutor's desire to demonstrate motive:
"Now, the reason I called Angie up here is to show that they knew Amalia was arrested. So they had a reason to go to the neighborhood. I wanted to corroborate that, and that's exactly what I did. She said that she was at home with the Defendant alone with her daughter. And the Defendant's cell phone was there. And somehow, that morning they received a message that Amalia was in jail. And after that, they had gone over to their parents' house. Well, conveniently, everyone met up there. And from there, they went over to the neighborhood, of course, as we know, to confront the victim." (Bold print added.)The prosecutor continued on to contrast that confirmation of knowledge with Amalia's testimony she never talked to defendant. There is nothing suggesting this statement was any form of vouching.
Finally, in statement 16, defendant's counsel contends the prosecutor improperly referenced matters outside of the record when noting, in the context of the credibility of the victim's wife's identification of defendant, the existence of multiple lineups:
"Now, one thing that the Defense brought up is Ms. Ramos's - really, ability or inability to identify the Defendant. But what's interesting is, she only admitted one of the photo lineups. Well, there was more than one. But in the one that she admitted, which is Defendant's Exhibit A, actually shows that she positively identified Raul Ayala in the Number 3 position. So this actually corroborates the fact that it happened. And that she identified one of the three individuals." (Bold print added.)
In Ms. Ramos's testimony at trial, she did, indeed, reference the fact that she viewed multiple sets of pictures, although she could not remember how many. Accordingly, given the prosecutor did nothing more than reference the testimonial fact that multiple line-ups existed and did not suggest in any form that there was relevant evidence in the non-introduced lineups, we see no reasonable inference, in context, that the prosecutor referenced matters outside of the record in her closing.
Thus, either viewed individually or as a group, we find no improper statements made by the prosecutor during closing arguments that would support a claim the trial was fundamentally unfair due to prosecutorial misconduct.
Having concluded defendant's arguments are meritless, we need not reach his ineffective assistance of counsel argument. (People v. O'Malley (2016) 62 Cal.4th 944, 1011, fn. 12.) Alleged Improper Admission of Evidence
Defendant further contests the admission of two pieces of evidence by the trial court. In the first, defendant claims the trial court wrongly admitted evidence surrounding an incident on May 28 where Mr. Ramos was assaulted by members of defendant's family, including members who allegedly participated in the May 31 threats, because that evidence was more prejudicial than probative. In the second, defendant asserts the trial court erred in admitting evidence regarding Amalia's arrest on May 31, again because the evidence was more prejudicial than probative.
Standard of Review and Applicable Law
Under Evidence Code section 352, the "court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." In the context of section 352, prejudice refers to evidence that uniquely tends to evoke an emotional bias against a party as an individual and only has slight probative value with regard to the issues. (People v. Scheid (1997) 16 Cal.4th 1, 19.)
We review the decision to admit evidence under section 352 for an abuse of discretion and will not disturb the ruling unless there is a clear showing the trial court exceeded the bounds of reason, all circumstances considered. (People v. Martinez (1998) 62 Cal.App.4th 1454, 1459.)
The Trial Court Did Not Abuse Its Discretion
With respect to the trial court's decision to admit the contested evidence under Evidence Code section 352, we see no abuse of discretion. Considering the incident on May 28, the victim claimed he was injured when defendant and his family physically assaulted him. The victim testified defendant's brother arrived at the victim's garage intoxicated and, when the victim did not provide jumper cables the brother had requested, several people, including defendant, came to the garage and assaulted him. The victim stated this incident made him fear for his life and, when he was threatened by defendant and his brother a couple days later, was a factor in his belief that the threats against him were real. This testimony was consistent with the prosecutor's pretrial statements that the evidence was offered to show the victim was legitimately in fear of his life based on the same individual being involved in a prior violent incident. Similarly, regarding defendant's sister's arrest prior to the threats, the victim explained that Amalia, defendant's sister, was his neighbor and that her loud parties and activities were a source of tension between the victim and defendant's family. The prosecutor further introduced evidence suggesting that Amalia told defendant she had been arrested because the victim called the police and that defendant retaliated against the victim for this reason. As with the earlier incident, this testimony matched up with the explanation given by the prosecutor as to why she would introduce the evidence at trial.
In both cases, the evidence is relevant and highly probative of essential facts concerning the charges brought. As the prosecutor stated, the prior incident was well within the victim's mind when defendant threatened his life on May 31. It is therefore probative of whether the victim took the threats seriously. With regard to the arrest, the incident and related evidence provides context with respect to the motive defendant would have to show up at the victim's home. Given that the core dispute in this case was the credibility of the victim and his family, this evidence was highly probative. While introducing evidence of recent criminal conduct by defendant and his family does carry with it some prejudice to defendant, this prejudice was not so great that it would exceed the bounds of reason to permit its introduction under the circumstances of this case.
DISPOSITION
The judgment is affirmed.
/s/_________
POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
FRANSON, J. /s/_________
MEEHAN, J.