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People v. Beck

Court of Appeals of California, First Appellate District, Division Four.
Nov 25, 2003
No. A100260 (Cal. Ct. App. Nov. 25, 2003)

Opinion

A100260. A100746.

11-25-2003

THE PEOPLE, Plaintiff and Respondent, v. JEROME EARL BECK, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. BRENTON DUANE AVERY, Defendant and Appellant.


A jury found defendants Jerome Earl Beck and Brenton Duane Avery guilty as charged of one count of robbery (Pen. Code, § 211), one count of attempted robbery (Pen. Code, §§ 211, 664), and one count of assault by force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). The trial court then found true allegations that Avery had two prior serious felony convictions (Pen. Code, §§ 667, subd. (a)(1), 1170.12). The trial court sentenced Beck to state prison for a term of five years and eight months, and Avery to an aggregate term of sixty years to life.

Beck and Avery each filed a timely notice of appeal. We ordered the appeals consolidated. Avery contends that due process was violated when the trial court allowed the prosecutor to reopen her case in order to move the Peoples exhibits into evidence, while at the same time denying Averys motion to reopen his defense in order to impeach a key prosecution witness. Beck makes the same claim about not allowing impeachment, as well as the courts earlier refusal to strike that witnesss testimony. Beck also argues that prejudicial error occurred when the court permitted the jury to hear evidence of post arrest statements from Avery, which incriminated Beck. We reject these contentions and affirm both judgments.

BACKGROUND

The offenses for which defendants were convicted occurred at two locations, within minutes of each other.

It was about 7 p.m. on December 19, 2001, and raining heavily when two couples—the Swetts and the Deutsches—emerged from different points in the Coddington Mall. The Swetts and Mr. Deutsch went into the parking lot to their respective vehicles. As Mr. Deutsch approached his truck, he saw three men wearing dark clothes and knit caps standing under a nearby tree. As Deutsch was getting into his truck, he was grabbed and struck in the face. While this was happening, Deutsch noticed that the three men were no longer under the tree. Deutsch was pulled from his truck, punched in the face, and kicked in the ribs (fracturing several) when he was on the ground. He was told to give up his wallet. Apparently discovering that Deutsch did not carry a wallet, the men took his watch and other items. His assailants faces were covered by ski masks. Filled with fear, Deutsch yelled for help. His yell was heard by Ms. Swett, who—from about 50 feet away—saw Deutsch on the ground surrounded by three men in dark clothing and hoods. Seeing Mr. Swett, the three ran. With Mr. Swett in pursuit, the three men jumped into a reddish-orange car and drove away. The crime was reported and police began looking for the car and the suspects.

It was still raining when approximately 30 minutes later, Morene Garcia and her five children were driving up to the Catholic Charities homeless shelter. She observed two men wearing jackets with hoods nearby. After Ms. Garcia opened her car trunk to remove some belongings, one of the men, who was wearing a ski mask, came up to her. Ms. Garcia told the man he had frightened her, to which he replied that was what he was trying to do. The man demanded her purse and money. The other man came up behind her. A third man some feet away yelled to the other that "She doesnt have anything, lets go." When the men started to walk away, Ms. Garcia ran into the shelter and told one of the staff what had happened. The staff member called police. Police arrived within two or three minutes.

When Ms. Garcia ran into the shelter and reported the incident, another resident of the shelter, Lorin Mitchel, then ran outside because he was concerned for his daughter, who was near where Ms. Garcia described the incident as occurring. In the stairwell of a parking structure across the street from the shelter, Mitchel observed two men, one of whom was "pulling down a mask over his face." Mitchel closed to a distance of only five or six feet and was able to identify the man as appellant Beck. Avery came up to Beck and the two were talking when Officer Lazzarini arrived in a patrol car. Mitchel alerted Lazzarini to Beck and Averys location and provided their description. When a red car with its headlights turned off drove past, Officer Lazzarini reported it over his car radio.

Based on that report, and one of the vehicles seen leaving the mall, the red car was stopped by a number of officers. Beck was driving; Avery was in the rear seat. Beck was removing leather gloves, which were wet. Avery was extremely nervous. Inside the car police found three ski masks (two of which were wet) and two additional pairs of wet gloves.

The front seat was occupied by a man named Rick Robinson, who was charged with the same crimes as Beck and Avery. Shortly before trial Robinson entered pleas of guilty to the charges.

Following defendants arrest Mr. and Ms. Swett were brought to the scene, where she identified the trio as the parking lot assailants "[b]ased only on size." She also identified the car as the one in which she saw them drove away from the mall parking lot. Mr. Swett was positive that it was the same car, but he made no certain identification of the persons. Mr. Mitchel was also brought to the scene, where he positively identified defendants. Ms. Garcia made a partial identification of Beck based on the sweatshirt worn by one of the other men, i.e., the ones who did not demand her money.

Officer Ludtke transported Avery to the police station. After Avery left the police car, Ludtke found a watch on the floor in the rear; the watch was not there before Avery entered the car. Mr. Deutsch identified the watch as the one taken from him in the mall parking lot. Questioned at the police station by Detective Henry, Beck stated that the car was his and that no one else had driven it.

REVIEW

I

Following his arrest, appellant Avery made a statement to Detective Henry to the effect that "they" (i.e., Beck and Avery) had driven through the mall in the reddish-orange car. It appears that the prosecutor made an in limine motion for a ruling that evidence of the statement could be admitted consistent with People v. Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1968) 391 U.S. 123. The trial court decided that the statement could be used, but only after it was redacted to eliminate any reference to Beck; the court ordered that all references to "they" in the statement be changed to "he," meaning Avery.

Detective Henry testified on direct examination by the prosecutor how he elicited Averys statement. He described the "ruse" he used to overcome Averys initial resistance: "I told him that the Coddington mall had a security system for the parking lot and that I had obtained the videotape for that security system. And that I had seen Mr. Becks vehicle on the tape in the parking lot of Coddington mall. [¶] . . . [¶] He then told me that he had been in the area of the Coddington mall . . . ." about the time of the Deutsch robbery. (Italics added.) When Henry asked what he was doing at the mall, Avery replied: "I think that he said they were passing through or that he was passing through." (Italics added.) Avery also admitted that he was at the Santa Rosa Plaza (which is near the Catholic Charities facility) after he was at the mall.

During cross-examination by Averys counsel, Detective Henry testified concerning chronological details after Avery joined up with Beck: "He [Avery] didnt know the times. When I spoke with him, I asked him about what time he arrived at Mr. Becks place. He wasnt sure. Eventually he said he thought it was around 5:00 . . . . He said that Mr. Beck wasnt home. I asked him what time did Mr. Beck arrive home. He said he wasnt sure. I asked him what time they left, because he indicated they wanted—or that Mr. Beck wanted to go to the Santa Rosa Plaza. He wasnt sure again what time it was they left. [¶] Q. Did you ask him what time he went to the parking lot near the Coddington post office? [¶] A. Yes. He indicated that they drove through—that he drove through the Coddington area when they left Mr. Becks residence. [¶] . . . [¶] [H]e said that he was with two other gentlemen and indicated that he drove through the [mall] lot." (Italics added.)

When Henry finished testifying, the prosecution rested, and the jury was excused for the day. The court stated: "[W]e had a brief discussion at the sidebar which originally started with the People asking, wanting apparently to ask further questions on a question that Miss Case [Averys counsel] had asked and my denying that request, but which also led the court to be concerned about the fact that, Im sure it was through inadvertence, but in any event, the witness who had been previously directed by the district attorney at my order to refer to Mr. Averys statements as he, numerous times stated they. And so Id just like to hear from the parties on this subject." The prosecutor stated that she had become "frustrated listening to Miss Cases . . . questions because I felt that she was asking questions that could only be answered by saying what Mr. Avery fully said . . . ." There followed a lengthy discussion between the court and Ms. Case about her tactics in cross-examining Henry. After the court agreed to give a limiting instruction, Becks counsel stated that "what concerns me is that Detective Henry offered on three different occasions on my cross-examination that my client terminated the interview so he stopped it early." After some discussion of this point and another unrelated problem (see part II, ante), counsel stated "I think we are getting into a situation where I think the Court on its own motion is going to have to declare a mistrial." The court ended the discussion by declaring "Im not granting any motions for mistrial right now, but I am going to do further research specifically in the Aranda-Bruton area" and asked counsel to submit proposed limiting instructions.

The following day Becks counsel suggested the court address the problem by instructing the jury with CALJIC No. 2.08 ("Statement Limited to One Defendant Only"). The court suggested that counsel draft a pinpoint instruction. The prosecutor then inquired whether it "has it been made clear from the record that the motion for mistrial was denied last night?" The court replied: "If it hasnt been, it will be now."

This instruction was given to the jury in the following modified form: "Evidence has been received about a statement made by a defendant after his arrest. Do not consider the evidence of this statement against the other defendant."

During closing argument the prosecutor told the jury: ". . . Detective Henry testified before you. Basically he asked Mr. Avery, Were you at Coddington mall, and he went through the events of the 19th with Mr. Avery, and he said no. So Detective Henry said, Well, we have a video around 7:00 oclock and Mr. Becks car is in that video—or, excuse me, a cars in that video and can you explain why you would have been seen personally in that video on that evening? And . . . Detective Henry asks him, only asking Mr. Avery about his own actions, Were you there? And Mr. Avery says, Okay, I was there. I was at Coddington."

In his opening brief, Beck frames his first contention as follows: "The lower court committed reversible error when it denied Becks motion to declare a mistrial based on the prosecutions repeated violations of the courts order regarding Averys out of court admissions." Beck claims that what the prosecutor did amounted to misconduct and violated his constitutional right of confrontation. Although the record suggests that Beck only inquired of the trial court whether it was declaring a mistrial on its own motion, we shall assume that the statement by Becks counsel was a mistrial motion. The denial of a mistrial motion will require reversal only if we determine that it amounted to an abuse of discretion. (E.g., People v. Maury (2003) 30 Cal.4th 342, 434.)

As a preliminary matter, we must define the extent of our review. Becks attempt to argue that the prosecutor intentionally sought to elicit testimony from Detective Henry that would violate the courts in limine order cannot overcome the trial courts express finding that the prosecutor had told Detective Henry of the courts ruling and that the ensuing violations of the ruling were inadvertent. Those findings were obviously based upon the courts evaluation of events in the courtroom and the credibility of Henry and the prosecutor, factors not subject to appellate review. (E.g., People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Moreover, it is an elementary principle of appellate review that a trial court ruling must be evaluated on the basis of evidence, argument, and information before the court at the time of the ruling. (E.g., In re Arturo D. (2002) 27 Cal.4th 60, 78, fn. 18; Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325.) At the time the mistrial motion was denied, the prosecutors closing argument had not yet occurred. It therefore can play no part in our analysis of whether the mistrial motion was properly denied.

The law to be applied by a trial court is now established. A confession or admission by a codefendant may be used at a joint trial, but only if it can be, and is, edited, to delete references to the other codefendant. (E.g., Gray v. Maryland (1998) 523 U.S. 185, 196; People v. Fletcher (1996) 13 Cal.4th 451, 456; People v. Anderson (1987) 43 Cal.3d 1104, 1123.) If evidence of a confession or admission by one codefendant in its unredacted form is heard by the jury, prejudice will be conclusively presumed only if the confession or admission is highly incriminating on its face to the other codefendant. (Richardson v. Marsh (1987) 481 U.S. 200, 206-208, 211.) If, however, the jury hears evidence of a statement that is not facially incriminating, but becomes damaging only when considered with other evidence, there is no per se rule of prejudice. (Richardson v. Marsh, supra, at p. 208.) Here the jury heard multiple references to Beck in Averys statement. Reversal is required unless the statement can, in light of other evidence and the entire record, be treated as harmless beyond a reasonable doubt. (Brown v. United States (1973) 411 U.S. 223, 230-231; People v. Anderson, supra, 43 Cal.3d 1104, 1128-1129.) Reversal is not required here.

Averys statements do not amount to a confession, either for himself or for Beck. The statements were not "powerfully" or "facially" incriminating. They did not "expressly implicate" Beck as his accomplice. The statements assume an incriminating hue only when considered in conjunction, or "linked" with the other evidence connecting defendant to the crimes against Mr. Deutsch and Ms. Garcia. Detective Henrys breaches of the trial courts redaction order, which the court found were inadvertent, could therefore be partially cured with a limiting instruction, which the trial court provided to the jury. (Richardson v. Marsh , supra, 481 U.S. 200, 206-208, 211.) The violations of the trial courts order by Detective Henry can also withstand analysis for federal constitutional error. A group of three men wearing dark clothing and ski masks were linked to both of the crimes. Mr. Deutsch saw the trio before he was assaulted. Ms. Swett saw the three men standing over Mr. Deutsch as he lay on the ground beside his car, and Mr. Swett saw the same three men flee in the reddish-orange car. Three men also attempted to rob Ms. Garcia. Both of the men she actually saw wore ski masks. When she reported the crime and Mr. Mitchel ran outside, he saw Beck wearing black clothing and pulling a ski mask down over his face. He also saw Beck join up with two other men, one of whom was Avery. Within minutes of the second crime, the three men were observed in the same reddish-orange car reported as being involved with the first robbery of Mr. Deutsch. The car, which did not have its headlights on, was stopped almost at once. Beck and Avery were two of the three men inside the car. Beck was driving the car, which he told police he owned. He also told Detective Henry that only he (Beck) had driven it that night. Inside the car were three wet ski masks. After Avery left the car, he was in possession of property (i.e., the watch) taken by force from Mr. Deutsch. It is true that only Mitchel made a positive in-court identification of Beck and Avery. The identifications made by Mr. and Ms. Swett, and Ms. Garcia, immediately after Becks car was stopped, were less positive, but still damaging. The Swetts both made strong identifications of the car. Ms. Swett also identified the three men found inside the car by their size. Ms. Garcia made a partial identification of Beck based on his clothing. Nevertheless, the Swett-Garcia identifications were still badly damaging, because they firmly linked the three men to the car, and therefore to the robbery of Mr. Deutsch. Beck is also linked to the Deutsch robbery by reason of the fact that Avery got out of Becks car in possession of the watch taken from Mr. Deutsch. Beck also linked himself to the Deutsch robbery by telling Henry in effect that if Becks car was involved, Beck himself was driving it. The effect of the Aranda-Bruton violations was thus corroborative of other evidence linking Beck to the other men, and to the car, and therefore to what the men did while outside of that car. In these circumstances any error may be dismissed as harmless. (E.g., Brown v. United States, supra, 411 U.S. 223, 230-231; People v. Anderson, supra, 43 Cal.3d 1104, 1128-1129.) It follows that the trial court did not abuse its discretion in denying Becks mistrial motion. (People v. Maury, supra, 30 Cal.4th 342, 434.)

Lastly, Beck argues that the prosecutor herself directly violated the courts order with the statement made in closing argument. Because a limiting instruction would be presumed effective, Becks failure to object means that the claimed misconduct was not preserved for review. (E.g., People v. Kipp (2001) 26 Cal.4th 1100, 1130.)

II

Immediately after Lorin Mitchel took the stand, the prosecutor established that he was a convicted felon (robbery, burglary, and forgery) who was currently in prison for a violation of parole. After receiving an affirmative to her question "have you committed robberies before?" the prosecutor asked Mitchel "Are you familiar with what robbers do when theyre about to commit a robbery?" Counsel for both defendants objected, one stating "This is being offered as some sort of expert opinion." The prosecutor stated "He is." The court overruled the objections and directed Mitchel to "Go ahead." Mitchel then testified about how he thought it was suspicious when he saw Beck pulling a ski mask over his face at night.

It thereafter became apparent (but not in front of the jury) that Mitchel had committed more robberies than his single conviction would indicate, that Becks counsel proposed to question him about them, and that if he did Mitchel would invoke his right against self-crimination and refuse to answer. Becks counsel then moved for a mistrial and to have Mitchels testimony stricken in its entirety. The trial court decided on a more limited relief: "I believe that a more appropriate remedy to cure the fact that he will not answer questions about the robberies hes committed . . . is to strike his testimony with regard to his opinion as to whether or not it was suspicious for the individual to be putting on a ski mask at a time when it wasnt snowing and strike that testimony and tell the jury and admonish them to disregard it and let the remainder of his testimony stand." When Mitchel was about to resume his testimony, the court told the jury: "Mr. Mitchel is back on the stand. I think he was on cross-examination. And before Mr. Mitchel completes his testimony, I want to inform the jury that some testimony that Mr. Mitchel gave yesterday on direct examination which had to do with his opinion as to whether or not the actions of the defendants were in any way suspicious is going to be stricken and you are admonished to disregard his opinion as to whether the conduct of the defendants in the parking garage was suspicious or not. And aside from that, his testimony will stand." Beck contends it was error not to strike all of Mitchels testimony.

During the course of arguing an in limine motion concerning Mitchels criminal history, the prosecutor indicated that Mitchel had one other robbery charged against him, but it did not result in a conviction.

Striking all or part of a witnesss testimony is a matter committed to the trial courts discretion. (People v. Hecker (1990) 219 Cal.App.3d 1238, 1248; People v. Reynolds (1984) 152 Cal.App.3d 42, 47-48.) "Striking a witnesss entire testimony is . . . a `drastic solution, only to be employed `after less severe means are considered. " (Fost v. Superior Court (2000) 80 Cal.App.4th 724, 736.) One of the important factors to be considered is the materiality of the answers the witness refuses to provide. (People v. Manchetti (1946) 29 Cal.2d 452, 461; People v. Reynolds, supra, at pp. 47-48; People v. Robinson (1961) 196 Cal.App.2d 384, 388-390; People v. Seitz (1929) 100 Cal.App. 113, 119-120.)

Once it became clear that Mitchel would not provide details about robberies or robbery charges that did not result in convictions, the court and the prosecutor apparently decided to withdraw his status as an expert witness. Once that was done, the materiality of the answers Mitchel refused to provide about other aspects of his criminal past was nullified. Mitchel would simply be a percipient witness merely describing what he had observed and drawing conclusions that could be drawn by any witness. As the trial court stated: ". . . I believe that, kind of thinking about this from a common sense viewpoint, its already been established that it was not snowing on December 19th in 2001 in Santa Rosa, and though it was raining, the jury can certainly consider that, that an average citizen without any experience committing robberies might well believe it is suspicious to see someone putting on a full ski mask over their face . . . . His testimony is simply the observation of that. [¶] And I believe that a more appropriate remedy to cure the fact that he will not answer the questions about the robberies hes committed is to . . . strike his testimony with regard to his opinion as to whether or not it was suspicious for the individual to be putting on a ski mask at a time when it wasnt snowing and strike that testimony and tell the jury and admonish them to disregard it and let the remainder of his testimony stand."

After the prosecutor offered to stipulate that "Mr. Mitchel is not an expert in the area of robbery," it was the trial court that continued "And strike his testimony about his—the basis for his knowledge [¶] . . . [¶] that there was suspicious activity, and I will instruct the jury that theyre to disregard all of that." Becks counsel declined the proffered stipulation.

Mitchel and his credibility were being weighed by a jury, which already knew that he had three felony convictions, including one for robbery. The conclusion supposedly made by Mitchel as an expert—whether the behavior of the men he observed was suspicious—was one that the jury could draw for itself. The trial courts ruling left the jury free to do precisely that. We cannot hold that the trial courts refusal to go farther and strike all of Mitchels testimony was an abuse of the courts discretion. (People v. Hecker, supra, 219 Cal.App.3d 1238, 1248; People v. Reynolds, supra, 152 Cal.App.3d 42, 47-48.)

III

The final contention is one made by both Avery and Beck. It has two components, which are described by Avery in his opening brief: "After both sides had rested, the jury had been given their preliminary instructions, the district attorney had made her opening argument and [Becks] attorney had argued, the district attorney arrived in court with a letter from Mr. Mitchel asking her for a date. The letter had been received the previous court day . . . but the district attorney did not reveal this letter until the next day in court. Defense counsel for [Beck] asked that he be allowed to introduce it to the jury, but the trial court refused to allow the case to be reopened stating the `evidentiary phase of the case is over. The trial court did agree to make it part of the record, but not so that it could be shared with the jury . . . . [¶] Later, after all sides had completed their final arguments, the judge delivered the final instructions and the jury sent out to deliberate, trial counsel for [Beck] pointed out that the prosecutrix [sic] never moved her evidentiary exhibits into evidence . . . . Then the trial court let the prosecution reopen her [sic] case to admit her exhibits into evidence, but still would not allow the defense to show Mr. Mitchels letter asking the prosecutrix for a date to the jury." Both Beck and Avery argue that the decision excluding Mitchels letter constituted prejudicial error. Avery goes on to argue that the error was of federal constitutional dimension. Avery also sees error in the trial court allowing the prosecutor to move that the Peoples exhibits be received in evidence while final arguments were being made to the jury.

The letter reads: "Carla [¶] Well today is/was my first day of testimony, let me tell you I dont want to ever do this again. [¶] I want to apoligize to you for how I spoke to you when we first met, I had know write to disrespect you like that. Belive it or not I have more class than that & should have used it. So again I am sorry. I also want to thank you for getting me a straight shot back to New Folsom. There are two things that got me to give my testimony, the straight shot being the second thing. [¶] Anyway as you know I parole July 29 my 64$ question is how would you feel about letting me take you to dinner? It would be my honor. (I would have realy perfered to ask to your face, but you never seemed to be alone, & a lot can happen in 33 days.) & I guarantee you tell me what you want to eat, Ill know the best place to go! So let me know what you decide. If Im not here, heres my address . . . ." (Sic.)

An examination of the record, however, confirms what is implicit in the passages quoted above from Averys brief—i.e., it was only Beck who raised an objection to both rulings by the trial court. The arguments presented were consequently not preserved for review. (E.g., Evid. Code, § 353, subd. (a); People v. Sanders (1990) 51 Cal.3d 471, 508; People v. Brown (1980) 110 Cal.App.3d 24, 35.) Citing People v. Hill (1998) 17 Cal.4th 800, 820-821, which deals with a limited situation where the failure to object will not waive a claim of prosecutorial misconduct, Avery argues that the omission should be overlooked with respect to the Mitchel letter because "[s]ince the trial court disallowed co-defendants counsel to reopen to present this impeachment evidence of Mr. Mitchel, it is a foregone conclusion that the trial courts ruling would be the same had appellants counsel made the same motion." This logic would make the specific-and-timely-objection requirement of Evidence Code section 353 a nullity in a criminal trial with more than one defendant. We are not at liberty to alter or ignore the statutes plain language. In any event, had Avery preserved the points for appeal, they would not command reversal.

The logic of Averys argument also has substantial practical limitations. For example, it would tie him only to those arguments actually made by Becks counsel, which did not include the constitutional argument Avery now presents in his brief. In addition, and as illustrated by the Aranda-Bruton issue discussed in part I, ante, the interests of co-defendants are not necessarily identical, and the arguments that could benefit one would not necessarily be available to, or assist, the other. This reality is also reflected in the appointment of separate counsel.

A trial courts decision whether or not to allow reopening is reviewed for abuse of discretion. (E.g., Pen. Code, § 1094; People v. Marshall (1996) 13 Cal.4th 799, 836; People v. Berryman (1936) 6 Cal.2d 331, 338-339.) As this court explained in People v. Newton (1970) 8 Cal.App.3d 359, 383: "Factors to be considered in reviewing the exercise of such discretion include the stage the proceedings had reached when the motion was made [citation], the diligence shown by the moving party in discovering the new evidence [citation], the prospect that the jury would accord it undue emphasis [citation], and the significance of the evidence." As to both aspects of the trial courts rulings, it is the last of these factors, which proves dispositive.

The contention that the court abused its discretion by permitting reopening of the prosecutions case merely to permit exhibits previously marked for identification to be formally received in evidence is without merit. The exhibits had all been authenticated, identified, or used to assist the testimony of witnesses. Accordingly, the ruling to receive the exhibits did not entail the admission of "new" evidence, which had not already been developed before the jury. In terms of our Newton formulation, the exhibits were not "significant" evidence. No abuse of discretion appears in these circumstances.

With respect to the letter, it does not constitute "new evidence of the hidden bias of the prosecutions key witness." At the start of her direct examination of Mitchel, the prosecutor elicited his testimony that he had multiple felony convictions and was recently returned to prison for a parole violation. The amount of time he would serve for the violation was "six months flat," a period not dependent either on his agreeing to testify or on the content of his testimony. The sole benefit provided by the prosecutor was that following his testimony he would be sent "straight back to the prison where [he] came from [¶] . . . [¶] as opposed to going to another prison first and then being transferred back to [his] original prison . . . ." When the prosecutor asked "[o]ther than that, . . . have I made any other promises to you of a lesser jail sentence, immunity, anything?" defendant replied, "No." No change in Mitchels testimony resulted from cross-examination by Becks counsel. Cross-examination by Averys counsel advised the jury that a likely reason for Mitchels desire to return directly to New Folsom Prison was to avoid returning to the prison classification center with a "snitch jacket" that would require him to be "basically in lockdown for . . . 23 hours a day."

During the course of arguing in limine motions, the prosecutor advised the court: "Your Honor, for the record, we have a witness, a civilian witness whose names Lorin Mitchel. Ive provided his felony convictions to counsel. He—we interviewed him. He suffered a parole violation . . . I talked to him in the jail and we didnt offer him anything in exchange for his testimony, but he did request that when he was brought back to prison that he go straight back to the prison that hes currently at as opposed to being brought to San Quentin first and then brought to the prison that hes currently at, for whatever reason. So I want counsel to know that there were no other agreements in terms of how much custody he had to do or shortening his parole violation time."

The district attorneys investigator who initially spoke with Mitchel was called to testify by Avery. On direct examination by Averys attorney, the investigator testified that when first interviewed, Mitchel was concerned about being sent to a specific prison other than New Folsom. Averys counsel asked "Were there any other considerations that Mr. Mitchel asked for?" The investigator replied, "Safety was the only concern he had." The prosecutor also posed the following questions and received these answers: "Q. [D]id he have any other conversation with you about any other promises or consideration before he gave you a statement? [¶] A. No. [¶] Q. Or before he agreed to testify? [¶] A. No."

Both Beck and Avery argue that it may be inferred from the letter that Mitchels desire for a date evidenced an infatuation with the prosecutor (which Avery speculates may have been invited) that might have motivated him to testify. The testimony from Mitchel and the district attorneys investigator (see fn. 8, ante), however, strongly suggests that Mitchel was if anything hostile to the deputy district attorney—who had previously prosecuted him on some unspecified matter—and agreed to testify once his concerns about his personal safety should he be sent to a prison other than New Folsom were satisfied. All the letter did was confirm that the prosecutor had indeed provided Mitchel with the one thing she promised—"a straight shot back to New Folsom." It did not prove that Mitchel had been promised, or received, any other benefit or inducement for his testimony. The letter thus does not qualify as "significant" new evidence (People v. Newton, supra, 8 Cal.App.3d 359, 383), and its exclusion from the jury does not establish a manifest abuse of discretion.

The judgments of conviction are affirmed.

We concur: Sepulveda, J. and Rivera, J.


Summaries of

People v. Beck

Court of Appeals of California, First Appellate District, Division Four.
Nov 25, 2003
No. A100260 (Cal. Ct. App. Nov. 25, 2003)
Case details for

People v. Beck

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JEROME EARL BECK, Defendant and…

Court:Court of Appeals of California, First Appellate District, Division Four.

Date published: Nov 25, 2003

Citations

No. A100260 (Cal. Ct. App. Nov. 25, 2003)