Opinion
F050149
5-21-2007
THE PEOPLE, Plaintiff and Respondent, v. NATHAN BANKS, Defendant and Appellant.
David Joseph Macher, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kelly E. Lebel, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Fearing that a girl he knew as "Pooh" might steal something from his apartment in Bakersfield, Joe Sanders asked his neighbor Michael Colbert to stay there while he was in Los Angeles on the night of February 18, 2005. Colbert and his friend Louis Steele were at Sanderss apartment when Jordan "Pooh" Bates knocked at the door and walked into the bedroom, where she stayed by herself for about a minute before she left.
Moments later, Bates returned to the apartment with her boyfriend Nathan Banks and Dedrick Langston. Banks and Langston both had handguns. Banks ordered Colbert onto the floor. Colbert recognized his voice as that of the caller who had asked him earlier that night "where the shit was." The next day, police found Banks at the residence where the call originated.
Bates testified pursuant to an agreement allowing her to admit a first degree murder allegation and receive a Juvenile Justice commitment to age 25 for her truthful testimony in the separate prosecutions of her confederates Banks and Langston. In People v. Langston (F049951), we adjudicate Langstons appeal.
Bates asked Colbert what was in his pants. He gave her his wallet. Banks asked him where Sanders was and "where the shit was." He told him Sanders was in Los Angeles but otherwise said he "wasnt saying nothing." Banks hit him on the head with his gun and told him "dont look at him, he is going to put a bullet in [his] head." His head started to bleed.
Bates, Langston, and Steele spent a few minutes together in the bedroom. Colbert heard Langston ask Steele, "Where is it at?," and heard Steele say, "This is all I got." Back in the living room, Langston told Colbert to sit on the couch next to Steele.
Bates and Banks left the apartment. Langston asked Colbert and Steele, "What else do you — anything else got up in here?" Steele said Sanders "got nothing, he broke." Langston shot Colbert and Steele. Colbert survived, but Steele died.
PROCEDURAL BACKGROUND
A jury found Banks guilty of conspiracy to commit first degree residential robbery in concert with others and with personal use of a firearm (personal use) (§§ 182, subd. (a)(1), 212.5, subd. (a), 213, subd. (a)(1)(A), 12022.53, subd. (b) ), of first degree murder during the commission of both a burglary and a robbery and with personal use (§§ 187, subd. (a), 190.2, subds. (a)(17)(A), (a)(17)(G), 12022.53, subd. (b)), of first degree residential robbery in concert with others and with personal use (§§ 211, 212, subd. (a), 213, subd. (a)(1)(A), 12022.53, subd. (b)), and of felon in possession of a firearm (§ 12021, subd. (a)(1)). The court sentenced him to life without possibility of parole for special circumstance murder (§§ 187, subd. (a), 190.2, subds. (a)(17)(A), (a)(17)(G)) and to 10 years for personal use (§ 12022.53, subd. (b)) and to 1 year for a prison term prior (§ 667, subd. (b)) and otherwise stayed sentence (§ 654).
All statutory references are to the Penal Code unless otherwise noted.
Banks had been tried twice before. His first trial ended in a mistrial due to juror misconduct. His second trial ended with a hung jury.
ISSUES ON APPEAL
On appeal, Banks argues that (1) improper admission of Colberts identification of him as the perpetrator prejudiced his confrontation clause and due process clause rights, (2) improper admission of Langstons and Sanderss statements prejudiced his confrontation clause and due process clause rights and his attorneys failure to object constituted ineffective assistance of counsel, (3) ineffective assistance of counsel allowed the admission of a police sergeants testimony about Langstons flight and a jury instruction about flight, and (4) prosecutorial misconduct and ineffective assistance of counsel during his cross-examination prejudiced him, as did (5) cumulative error. We will affirm the judgment.
DISCUSSION
1. Identification of Banks
Banks argues that improper admission of Colberts identification of him as the perpetrator prejudiced his confrontation clause and due process clause rights. The Attorney General argues the contrary.
On the premise that Colbert had no personal knowledge of his "likeness or appearance," Banks filed a motion in limine to prohibit his identifying him. (See Evid. Code, § 702.) The prosecutor opposed the motion. The parties agreed to submit the issue on the transcript of a prior hearing at which Colbert and an officer who interviewed him testified and at which the parties stipulated to the admission of a portion of a detectives report. (Evid. Code, § 402.) On that foundation, the court denied the motion.
At the hearing, Colbert identified Banks as one of the two males who entered the apartment and as the one who did not shoot him and Steele. He testified that before a local newspaper published Bankss photo he saw two lineups in which he could not identify anyone, that he recognized Banks in the newspaper photo from his memory of the crimes, that he identified Banks in court not from the newspaper photo but from his memory of the crimes, and that he could have identified Banks in court even if he had not seen the newspaper photo. The officer testified that Colbert gave her descriptions of both males who entered the apartment and said he could identify both if he were to see them again. The detectives report indicated that he showed Colbert a photo lineup with Bankss photo and that Colbert said that two other people in the lineup were similar in appearance to the perpetrators but that he could not identify anyone.
To determine whether the admission of identification evidence violates due process, we must consider, first, "whether the identification procedure was unduly suggestive and unnecessary," and, second, if so, "whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witnesss degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification." (People v. Cunningham (2001) 25 Cal.4th 926, 989.)
On the basis of selective excerpts of some of Colberts hearing testimony, Banks argues that the requisite personal foundation for that testimony was absent because he "admitted he did not have personal knowledge to make the identification but instead relied upon the media." Our reading of that testimony differs from Bankss. Since the constitutionality of an identification procedure presents a mixed question of law and fact, the standard of independent review applies. (People v. Kennedy (2001) 36 Cal.4th 595, 609.) By that standard, we conclude on the basis of our independent review of the entire record of the hearing that the court properly admitted in evidence Colberts identification of him as the perpetrator. His failure to satisfy the first prong of the due process test obviates the need for inquiry into whether he satisfies the second prong. (People v. Cunningham, supra, 25 Cal.4th at p. 989.)
2. Statements of Langston and Sanders
Banks argues that improper admission of Langstons and Sanderss statements prejudiced his confrontation clause and due process clause rights and that his attorneys failure to object constituted ineffective assistance of counsel. The Attorney General argues that the failure to object forfeited the right to appellate review, that the statements nonetheless were admissible, that error, if any, was harmless, and that his attorney did not render ineffective assistance of counsel.
Langstons statements were in Batess testimony about a conversation she overheard between Banks and Langston after the crimes:
"Q. Then what?
"A. Before we leave, [Langston] asked [Banks] he think I was going to tell. And [Langston] said, no, he going to make sure I dont say nothing.
"Q. Who says theyre going to make sure you dont say anything?
"A. [Banks] says he going to make sure I dont say anything.
"Q. So if I understand correctly, [Langston] talks to him about how do we know if youre not going to talk?
"A. Huh?
"Q. Can you go through it again? Who says what first?
"A. Before we leave, before we walk off, [Langston] asked [Banks] does he think Im going to tell. [Banks] tells [Langston] no, he going to make sure I dont say nothing.
"Q. Thats referring to you not saying anything?
"A. Yes."
Sanderss statements were in a detectives testimony about an interview with Colbert at the hospital:
"Q. Did he say whether or not Joe Sanders told him about the girl coming over?
"A. Yes.
"Q. What did he say?
"A. Sanders asked him if he would stay and watch the apartment because there was a girl coming over that may rob the place. And I tried to be specific in what he meant by robbing. And it wasnt literally Sanders — or Colbert told me he didnt get the impression that she was going to actually do a robbery, but might steal something from him.
"Q. Might take something from the apartment?
"A. Yes.
"Q. But not in what you know as a by force or fear situation?
"A. Yes."
Even though the parties litigated evidentiary motions in limine before trial, the court straightforwardly admonished both counsel that "if you believe an objection based on hearsay should be made, you need to make it." So Bankss failure to object forfeited his right to appellate review of the admissibility of the testimony he challenges. (People v. Thompson (1998) 61 Cal.App.4th 1269, 1280, fn. 11, citing People v. Sanders (1995) 11 Cal.4th 475, 526, fn. 17.)
Nonetheless, in the interest of judicial efficiency, we choose to address Bankss claim of ineffective assistance of counsel on the merits. (See People v. Williams (1998) 61 Cal.App.4th 649, 657, citing People v. Marshall (1996) 13 Cal.4th 799, 830-831.) The right to counsel protects the due process right to a fair trial by guaranteeing "access to counsels skill and knowledge" and implementing the constitutional entitlement to an "`ample opportunity to meet the case of the prosecution." (Strickland v. Washington (1984) 466 U.S. 668, 684-686.) On appeal, the defense has the burden of showing that counsels performance not only "fell below an objective standard of reasonableness" but also prejudiced the defense. (Id. at pp. 687-692.) To show prejudice, the defense must show a "reasonable probability" that but for the attorneys performance the result of the proceeding would have been so different as to undermine confidence in the outcome. (Id. at pp. 693-694.)
Whether Bankss counsel might have chosen not to object because the statements by Langston and Sanders did not strike him as harmful or because he simply did not wish to highlight those statements with an objection, the record is silent. (See People v. Milner (1988) 45 Cal.3d 227, 245.) So he fails to satisfy his burden on appeal of showing that counsels inaction "was not a reasonable tactical choice." (People v. Michaels (2002) 28 Cal.4th 486, 526.) Since the evidence of his guilt was strong and the likely impact on the jury of Langstons and Sanderss statements was negligible, error, if any, was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Lack of an objection rarely establishes ineffective assistance of counsel. (People v. Avena (1996) 13 Cal.4th 394, 421.) That is so here.
3. Flight of Langston
Banks argues that ineffective assistance of counsel allowed the admission of a police sergeants testimony about Langstons flight and a jury instruction about flight. The Attorney General argues the contrary.
The evidence of Langstons flight, to which Banks did not object, arose during the sergeants testimony about the police search for Langston. He testified that while in uniform and at the wheel of a marked police car he found Langstons van with no one inside parked near a residence where, as he talked with people there, he saw someone run across a nearby road. After confirming that Langston was not inside the residence, he set up a perimeter involving "many, many officers" in that area. The person suddenly appeared just 10 or 15 feet away from him, and the sergeant drew his weapon and ordered him to stop, but the person kept running. The sergeant gave chase, the person jumped a fence, and officers "basically waiting for him" on the other side of the fence arrested him. Langston was in custody.
With no defense objection, the court instructed the jury with CALJIC No. 2.52: "The flight of a person immediately after the commission of a crime is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide."
The crux of Bankss argument is that since he and Bates were in custody before Langstons arrest the evidence of Langstons flight after the conspiracy had ended was inadmissible as a matter of law. (See People v. Garceau (1993) 6 Cal.4th 140, 177, overruled on another ground by People v. Yeoman (2003) 31 Cal.4th 93, 117-118; Evid. Code, §§ 210, 350) Since we shall adjudicate Bankss ineffective assistance of counsel claim solely on the issue of prejudice without evaluating his attorneys performance (see Strickland v. Washington, supra, 466 U.S. at p. 697), the issue before us is prejudice, not relevance. To establish prejudice, the defense has the burden of showing a "reasonable probability" that but for the attorneys performance the result of the proceeding would have been so different as to undermine confidence in the outcome. (Id. at pp. 687-692.)
Quoting the prosecutors argument that Banks and Langston conspired with Bates to commit a "dope rip-off which went terribly, terribly, terribly wrong" in which Banks had Langston do the "dirty work" of shooting Steele and Colbert, Banks argues that "the escape attempt by Langston was prejudicial to [Banks] for it suggested consciousness of guilt by his alleged companion in crime." With compelling evidence of Bankss guilt in the record, the likely impact on the jury of evidence that merely suggested someone elses consciousness of guilt was negligible. Lack of an objection rarely establishes ineffective assistance of counsel. (People v. Avena, supra, 13 Cal.4th at p. 421.) As before, again that is so here.
The instruction on flight was equally innocuous. First, since CALJIC No. 2.52 stated not that the jurors must — but only that they "may" — consider evidence of flight, nothing required the jury to do so. (People v. Mendoza (2000) 24 Cal.4th 130, 177.) (Italics added.) Second, CALJIC No. 17.31 cautioned the jury that not all instructions were necessarily applicable: "The purpose of the courts instructions is to provide you with the applicable law so that you may arrive at a just and lawful verdict. Whether some instructions apply will depend upon what you find to be the facts. Disregard any instruction which applies to facts determined by you not to exist. Do not conclude that because an instruction has been given I am expressing an opinion as to the facts." Third, "`at worst, there was no evidence to support the instruction," so "`it was superfluous." (People v. Cole (2004) 33 Cal.4th 1158, 1223.) Where the evidence of guilt is strong, "`reversal on such a minor, tangential point is not warranted." (Ibid.) In short, the instructional aspect of Bankss flight argument is equally meritless.
4. Cross-Examination of Banks
Banks argues that prosecutorial misconduct and ineffective assistance of counsel during his cross-examination prejudiced him. The Attorney General argues that Banks forfeited his right to appellate review, that no prosecutorial misconduct occurred, that error, if any, was harmless, and that no ineffective assistance of counsel occurred.
Banks characterizes as prosecutorial misconduct the questions in two lines of inquiry by the prosecutor and a question and a comment in a third line of inquiry by the prosecutor. The first line of inquiry ensued after Banks testified to buying, selling, and using drugs:
"Q [PROSECUTOR:] Let me ask you this: When you are selling drugs, are you doing it right out in the middle of the public?
"[DEFENSE COUNSEL]: Your Honor, object. Relevance.
"THE COURT: Sustained.
"Q. (BY [DEFENSE COUNSEL]) When you sell drugs, you try to hide that from the police, dont you?
"[DEFENSE COUNSEL]: Objection. Relevance.
"THE COURT: Sustained.
[¶] ... [¶]
"Q. (BY [PROSECUTOR]) Let me ask you this: When you buy drugs, would you do it in front of the police?
"[DEFENSE COUNSEL]: Objection.
"THE WITNESS: No, sir.
"THE COURT: Hold on a second. Come on over here and let me see you at side bar.
"(Side bar discussion held.)
"THE COURT: Objection is sustained."
The second line of inquiry arose when the prosecutor focused on Bankss using Bates to buy drugs for him:
"[PROSECUTOR:] How do you feel about asking this 17-year-old girl, your girlfriend, to go buy drugs?
"A. Well, at the time, I was told from her and her mother that she was 18 years old when I first started talking to her. And the drug thing comes up when Im looking for it, and she tells me she knows where to get it.
"Q. How does it make you feel having your girlfriend go out and buy drugs for you?
"[DEFENSE COUNSEL]: Objection, your Honor.
"THE COURT: Sustained. I think its irrelevant."
Finally, Banks challenges the prosecutors "rhetorical `flourish" at the end of cross-examination:
"Q. [PROSECUTOR:] Let me ask you this, Mr. Banks. Is a handful of marijuana and 30 bucks worth killing two kids to get rid of them as witnesses?
"A. Its not worth killing nobody ever, sir. Its a waste.
"[PROSECUTOR]: You are right there. No other questions."
By sometimes stating no ground at all and sometimes giving only relevance as a ground in objecting to the first and second lines of inquiry, and by failing to object at all to the prosecutors "rhetorical `flourish" at the end of cross-examination, Banks forfeited his right to appellate review on the ground of prosecutorial misconduct. (People v. Hinton (2006) 37 Cal.4th 839, 869; Evid. Code, § 353, subd. (a).) Since "failure to identify the specific ground of objection denies the opposing party the opportunity to offer evidence to cure the asserted defect," the public policy justification for the rule is evident. (People v. Holt (1997) 15 Cal.4th 619, 666.)
Nonetheless, as before, in the interest of judicial efficiency, we choose to address Bankss claim of ineffective assistance of counsel on the merits. (See People v. Williams, supra, 61 Cal.App.4th at p. 657, citing People v. Marshall, supra, 13 Cal.4th at pp. 830-831.) Even though the prosecutors first and second lines of inquiry bore on Bankss modus operandi in dealing with drugs and in using Bates to help him, just as he did on the night of the crimes here, the prosecutor nonetheless drifted from relevance to irrelevance. An irrelevant question, however, is not necessarily an argumentative question, which case law defines as "a speech to the jury masquerading as a question" to which the questioner does not seek "to elicit relevant testimony" and might "not even expect an answer." (People v. Chatman (2006) 38 Cal.4th 344, 384.) By that definition, the prosecutors first and second lines of inquiry were not argumentative, so Bankss attorney had no duty to object on that ground. The law neither does nor requires idle acts, and an attorney has no duty to make a futile request. (Civ. Code, § 3532; see People v. Anderson (2001) 25 Cal.4th 543, 587.)
On the other hand, the question in the prosecutors "rhetorical `flourish" at the end of cross-examination was argumentative. However, since there was no reasonable likelihood that the jury misconstrued or misapplied his words in a way that impaired Bankss right to due process, his question did not constitute prosecutorial misconduct. (See People v. Clair (1992) 2 Cal.4th 629, 663, citing Estelle v. McGuire (1991) 502 U.S. 62, 72-73.) The same is true of his comment after Banks answered his question. "A prosecutor may not give a personal opinion or belief as to the defendants guilt if it will suggest to the jury the prosecutor has information bearing on guilt that has not been disclosed at trial. [Citations.] However, a prosecutor is permitted to offer an opinion on the state of the evidence. [Citation.] This is precisely what occurred here. There was no misconduct." (People v. Frye (1998) 18 Cal.4th 894, 975-976.)
5. Cumulative Error
Banks argues cumulative error. The Attorney General argues the contrary. Our review of the record shows no cumulative error requiring reversal of the judgment. (See People v. Bradford (1997) 15 Cal.4th 1229, 1344.) "A defendant is entitled to a fair trial but not a perfect one." (Lutwak v. United States (1953) 344 U.S. 604, 619.) Banks received the fair trial to which he was entitled.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
Levy, Acting P.J.
Hill, J.