Opinion
E050573
08-31-2011
THE PEOPLE, Plaintiff and Respondent, v. JEFFERY DEAN BINGHAM, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. INF066320)
OPINION
APPEAL from the Superior Court of Riverside County. Bert L. Swift, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, §6 of the Cal. Const.) Affirmed.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Jeffrey Dean Bingham of possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a), count 1), transporting methamphetamine (Health & Saf. Code, § 11379, count 2), and obstructing or delaying a peace officer (Pen. Code, § 148, subd. (a), count 3). He was placed on probation with the requirement that he serve 120 days, on consecutive weekends, in county jail. Defendant contends the prosecutor's closing argument was improper and unsupported, and thereby prejudicially violated his right to a fair trial. Although the prosecutor committed misconduct by misstating facts, defendant forfeited the claim, and we find no ineffective assistance of counsel in the tactical choice to address the misstatements in responsive argument rather than by objection. Accordingly, we affirm.
BACKGROUND
At approximately 2:30 a.m., on July 20, 2009, a sheriff's deputy initiated a traffic stop. The deputy observed a car turn without signaling; he accelerated after the car and turned on his patrol vehicle's lights. A few moments later, the vehicle stopped in front of defendant's residence. At that time, the patrol vehicle's lights were illuminated, including the red and blue lights, two white spot lights, and a white bar light. Other than the lights from the patrol vehicle, the only light was a "porch light outside [defendant's] garage or something like that."
As soon as the car stopped, defendant exited from the passenger door "and walked out at a fast rate of speed." The deputy exited the patrol vehicle and said in a loud voice, "stop, stop." Defendant walked toward the driveway gate. Defendant opened the gate while the deputy, from approximately 10 feet away, yelled at him and ordered him to stop. It took defendant approximately 10 or 15 seconds to get the gate open. The deputy called for backup.
After opening the gate, defendant continued walking at a fast rate of speed toward his residence; he passed along the passenger side of a pickup truck that was facing toward the gate. As defendant got toward the rear of the truck, the deputy saw defendant's right hand extend out and open up; this gave the appearance that defendant was dropping something in the back of the truck. The deputy was continuing to get behind defendant and was about five to 10 feet behind him. As defendant put his arm out, the deputy pulled his taser out and told defendant to "stop, stop." Once his arm was out, defendant stopped and turned around.
The deputy asked defendant why he did not stop, and defendant said that he had not heard the deputy. The deputy had defendant return to the vehicle, and then had a corporal, who had just arrived, stay with the driver and defendant. The deputy returned to the truck and found a baggy of methamphetamine in the bed of the truck. Defendant did not ask to go to the restroom, or indicate he had diarrhea.
Defendant testified that he was not feeling well and had to get in to his house. He noticed "a car pull up" as he "went to the gate." He did not hear anything until he got to the truck and the deputy said, "Stop I'm going to taser you." He had not seen any lights and was walking fast because he had diarrhea. He denied possessing or transporting methamphetamine, denied any intention of interfering or delaying the deputy's investigation, and claimed the driver had used a turn signal. While in the patrol car, defendant told the deputy he "had to use the bathroom." Defendant only asked the one time. When asked, "But you had to go so badly that you were running to the house in the beginning?" Defendant responded, "I'm an adult grown-up. I can hold my stool."
During closing arguments, the prosecutor stated: "The defendant willfully did something to delay or obstruct [the deputy] in performing his duty. He . . . was executing a traffic stop. That's a lawful duty. He went over—the intention was to go over to the driver of the vehicle and get the license[,] register, [sic] et cetera." Defendant's trial counsel then objected on the grounds that "[t]here was no testimony to that effect." The trial court overruled the objection but admonished the jury, "Ladies and gentlemen, you decide what the testimony was and what the facts are in this case." The prosecutor then continued her closing: "You can infer based on our common everyday knowledge when we get pulled over for not using your turn signal, the purpose of the stop is so you can get a traffic citation. Let's just assume that's what was happening, but you are the decider [of] fact in this case. [The deputy] wasn't able to do that. Why? Because he was delayed and or obstructed by the defendant in performing his lawful duty because defendant decided he was going to take off . . . ."
Also during closing, the prosecutor stated: "And there's some testimony that prior to the vehicle coming to a complete stop . . . the sirens were on in order to get the Cadillac to stop." There was no such testimony; the deputy had testified that he did not have the sirens on. However, defendant's trial counsel did not object. Nor does defendant contest this statement on appeal.
Later in her closing, the prosecutor stated, "again, your memory is the one that controls, not mine—so if you remember it differently, that's what is controlled. . . . [¶] . . . [¶] We know that there are—that the vehicle gets pulled over, that first there was a siren to prompt the vehicle to pull over, the red and blues are on and the vehicle stops." Defendant's trial counsel did not object to the misstatement of fact.
Further into her closing, the prosecutor stated: "He told you when the vehicle pulled up that the driver of the vehicle, his friend, said no he told him he needed to go to the bathroom and the friend said, 'You go. I'll take care of this.' [¶] And he said would he take care of it because he was being pulled over. That's why I got out and walked away because [the friend] said I'll take care of it. Doesn't that contradict everything else he said about not knowing the officer was there? . . . [¶] . . . [¶] . . . What about the driver? Did we hear from the driver? Did we hear him say oh, sure enough, he had to go to the bathroom really, really bad. So the statement that he says the driver said that was actually hearsay, which you aren't to consider. [¶] But if you do consider it, well, doesn't make any sense any way." There was no testimony as to this discussion between defendant and his friend who was driving. However, defendant's trial counsel did not object.
Toward the end of her closing, the prosecutor again mentioned sirens: "[T]alk about your own personal experiences, defendant is in a car with a friend. It's 2 o'clock in the morning. It's a dark neighborhood. When he gets pulled over, there's all those lights. I mean there's the siren initially." Defendant's trial counsel did not object.
Shortly after starting his closing arguments, defendant's trial counsel stated: "I spent much of [the] break scouring my notes for evidence, testimony, or any indication that a siren was turned on during this stop. It's your recollection. I didn't hear it. I didn't note it. I take fairly good notes. I did not hear any testimony that [defendant] or . . . the driver of the car turned to my client and said, 'Don't worry about it. I'll take care of the officer. You go ahead and go to the bathroom.' There was no testimony to that effect." Later, he stated, "He never said, and I repeat myself, he never said [defendant] you go take care of your emergency. I'll take care of it." In concluding he stated, "No siren. No statements from [the driver]. There's no meth found in his car. No paraphernalia. No pipes. No tool. No tools for methamphetamine found. No indicia of intoxication. Those all seem to point in the direction inconsistent with possession. Tell the D.A. that. Tell my client that. Find him not guilty."
In her rebuttal, the prosecutor stated, "[W]hatever comes out of my mouth isn't evidence. I didn't testify. I'm not a witness in this case. Nothing I tell you is evidence. It's your independent recollection of everything you heard that controls."
COMMENTING ON THE DEPUTY'S INTENT
Defendant contends the prosecutor committed misconduct by arguing that the deputy had intended to go to the driver and ask for his license. The People contend this was a proper inference. Defendant acknowledges that the statement is "arguably a reasonable inference to be drawn from the evidence." Because the prosecutor was offering an inference, we find no misconduct.
"[C]ounsel have a right to present to the jury their views on the deductions or inferences that the facts warrant. Their reasoning may be faulty, but this is a matter for the jury to decide. [Citation.]" (People v. Farmer (1989) 47 Cal.3d 888, 923, overruled in part on another ground by People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.)
The prosecutor proffered the interpretation that the deputy was intending to conduct a generic traffic enforcement stop. Because the deputy initiated the stop due to a failure to signal, this was a reasonable inference. Furthermore, after defendant's trial counsel objected, and the trial court overruled the objection but admonished the jury that they determine the facts, the prosecutor made explicit that she was asking the jury to draw an inference based upon their common knowledge. Accordingly, we find no misconduct.
UNSUPPORTED STATEMENTS
Defendant contends: the prosecutor's references to sirens and a statement of the driver were prejudicial; the issue was not forfeited by the lack of an objection; and the failure to object constituted ineffective assistance of counsel. The People contend the claims were forfeited, the failure to object was not deficient performance by counsel, and counsel's performance did not prejudice defendant.
Preliminarily, we note that evidence of sirens and a statement of the driver were not in the record. As stated in People v. Woods (2006) 146 Cal.App.4th 106, 116, "argument of matters outside the record constitute[s] misconduct." However, defendant has forfeited any claim, and he did not receive ineffective assistance of counsel.
Forfeiture
Defendant contends that objecting and seeking an admonition would have been futile because the objection that his counsel did make, to the permissible inference that the officer was intending to conduct a routine traffic stop because of the failure to signal, was overruled with the trial court admonishing the jury that it decides "what the testimony was and what the facts are."
"To preserve a claim of prosecutorial misconduct during argument, a defendant must contemporaneously object and seek a jury admonition. [Citations.]" (People v. Bonilla (2007) 41 Cal.4th 313, 336.) "There are two exceptions to this forfeiture: (1) the objection and/or the request for an admonition would have been futile, or (2) the admonition would have been insufficient to cure the harm occasioned by the misconduct. Forfeiture for failure to request an admonition will also not apply where the trial court immediately overruled the objection to the alleged misconduct, leaving defendant without an opportunity to request an admonition. A defendant claiming that one of these exceptions applies must find support for his or her claim in the record. [Citation.] The ritual incantation that an exception applies is not enough." (People v. Panah (2005) 35 Cal.4th 395, 462.) A trial court's treatment of an unrelated objection does not show that all objections would have been futile. (People v. Arias (1996) 13 Cal.4th 92, 159-160.)
When the prosecutor made the improper statements, defendant's trial counsel did not contemporaneously object and seek an admonition. Defendant's trial counsel had earlier objected to the prosecutor's statement as to the deputy's intent in conducting the traffic stop, but was overruled. However, as discussed above, that objection was to a permissible inference and not to a misstatement of fact. Moreover, the trial court still issued a clarifying admonishment to the jury. Thus, there is no indication that an objection to actual misstatements of fact, the nonexistent sirens and mythical driver's statement, would have been futile. Accordingly, defendant's claims have been forfeited.
Assistance of Counsel
Defendant contends "[a]ny reasonably effective defense counsel would have objected" to the prosecutor's misstatements, and "[n]o reasonably effective defense counsel would ever tactically decide not to object to such an unsupported, prejudicial argument." "However, competent counsel may often choose to forgo even a valid objection. '[I]n the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jury's apparent reaction to the proceedings. The choice of when to object is inherently a matter of trial tactics not ordinarily reviewable on appeal.' [Citation.]" (People v. Riel (2000) 22 Cal.4th 1153, 1197.)
Here, the prosecutor made statements in her closing arguments that were unsupported by the record. However, the jury had been admonished, shortly before the misstatements of fact were made, that it would "decide what the testimony was and what the facts are in this case." The record does not disclose how the jury responded to the misstatements or the admonishment. Defendant's trial counsel did not object to the statements, but during his closing, he repeatedly pointed out the absence of testimony to support the prosecutor's misstatements of fact. In her rebuttal, the prosecutor stated, "if I say something to you that misstates something you thought you heard, you go with what you heard. You don't go with what I told you." Thus, defendant's trial counsel obtained a result similar to what he might have obtained via an objection and admonishment: an indication to the jury that the facts may not be as stated by the prosecutor and the prosecutor's recitation of facts and argument may not be reliable. In this context, we cannot say that the tactical choice of defendant's trial counsel was unreasonable.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
RICHLI
J.