Opinion
A149317
07-03-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA BOLING, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. Nos. SCN224620 & SCN224350)
Appellant was convicted following a jury trial of grand theft of a firearm, resisting a peace officer causing serious bodily injury, assault on a peace officer with force likely to cause great bodily injury, battery with serious bodily injury, battery with injury on a peace officer, threatening an executive officer, attempting to receive a firearm as a prohibited person, receiving a firearm as a prohibited person, and battery on a peace officer. On appeal, appellant contends the judgment must be reversed because (1) he received ineffective assistance of counsel and (2) the prosecutor committed misconduct during closing argument to the jury. We shall affirm the judgment.
PROCEDURAL BACKGROUND
Appellant was charged by information with grand theft (Pen. Code, § 487, subd. (d)(2)—count I); resisting a peace officer causing serious bodily injury (§ 148.10, subd. (a)—count II); assault on a peace officer with force likely to cause great bodily injury (§ 245, subd. (c)—count III); battery with serious bodily injury (§ 243, subd. (d)—count IV); battery with injury on a peace officer (§ 243, subd. (c)(2)—count V); threatening an executive officer (§ 69—count VI); attempting to receive a firearm as a prohibited person (§ 29825, subd. (a)—count VII); and receiving a firearm as a prohibited person (§ 29815, subd. (a)—count VIII). The information alleged, as to counts III, V, and VI, that appellant had personally inflicted great bodily injury, pursuant to section 12022.7, subdivision (a).
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant was also originally charged with one count of battery on an officer (§ 243, subd. (b)—count IX), and three counts of resisting a peace officer (§ 148, subd. (a)(1)—counts X, XI, & XII). The trial court subsequently granted the prosecution's motion to dismiss those counts in the interest of justice, pursuant to section 1385.
Following a jury trial, the jury found appellant guilty of counts I through VIII, and found true the great bodily injury allegations.
On September 1, 2016, the trial court suspended imposition of sentence and placed appellant on probation for five years. The court also granted appellant's motion to reduce his two firearm receiving convictions to misdemeanors.
On September 6, 2016, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Celeste Meier testified that on June 21, 2015, a delivery service delivered a box containing a repaired Beretta shotgun to the front steps of her home on California Street in San Francisco while she and her family were on vacation. The shotgun was worth $8,900. Surveillance footage from a video camera showed someone stealing the box containing the gun.
Ronald Foster testified that on the evening of June 21, 2015, he was walking on Octavia Street in San Francisco when he saw a man sitting on the ground putting a shotgun together. Foster called 911.
San Francisco Police Officer Joshua Nazzal arrived at Octavia and Bush Streets around 10:34 p.m., following Foster's 911 call. He was in a marked patrol car and wearing his full police uniform. Nazzal saw a man, whom he identified in court as appellant, seated outside a restaurant. There was a backpack on one side of him and he was turned toward a black case on the other side. Nazzal, who was trying to determine if appellant had a weapon, exited his vehicle and approached him slowly with his firearm drawn and close to his chest, with the barrel pointing to the ground. As he got closer, Nazzal pointed his gun at appellant and ordered him to stand up. Nazzal maintained eye contact with appellant during the entire time he approached. When he was about 150 feet away from appellant, Nazzal yelled, " 'Police. Show me your hands.' " He repeated this three or four times as he continued to walk toward appellant.
Appellant did not acknowledge Nazzal until Nazzal was only 10 to 15 feet away, when appellant turned, faced Nazzal, and finally complied with the command to stand up. Appellant was mumbling something and "looking straight through me. It appeared he was under the influence of something. I couldn't tell." Nazzal wanted to handcuff and search appellant for a weapon, so he ordered appellant to turn around and stand against the wall behind him. Nazzal did not touch appellant, but kept his firearm pointed at appellant. Nazzal was thinking "there's something not right here"; appellant was "obviously not focused, he's not all there, he's not really responsive to my commands." Nazzal was also concerned that appellant might have a firearm.
Appellant finally turned around to face the wall and Nazzal holstered his weapon. They were around five feet apart at that point. When his firearm made a clicking noise, which it always did when he holstered it, appellant turned and faced him. Appellant immediately mumbled something incoherent and pushed Nazzal in the chest with both hands, knocking Nazzal backwards. Nazzal, said, " 'Hey, turn around,' " and grabbed appellant's arm, but appellant broke away and began to run.
Nazzal caught up with appellant and tried to subdue him by grabbing his arm and pushing him to the ground, but appellant pulled away and almost immediately tackled Nazzal, grabbing him around the waist, lifting him off the ground, and pushing him into the wall. Nazzal felt an impact to the back of his head and the next thing he remembered was being on his back on the ground, with appellant on top of him. He tried to get appellant off, but started feeling a sharp pain in the back of his head and became dizzy. Appellant was reaching down toward Nazzal's waistband, where his gun belt was, and he felt pressure in his waist area. He started punching appellant as hard as he could and telling appellant to get off him. Although appellant remained on top of him, he never struck Nazzal while they were on the ground.
Eventually, another officer arrived and either punched or pushed appellant. That was the last thing Nazzal remembered until he woke up a short distance away, with another officer asking him if he was okay. He did not recall how he ended up in that location. He "felt really out of it." He had a bad headache and was dizzy. The paramedics then showed up and Nazzal told them he had hit his head and was dizzy and nauseous. He was taken to a hospital where he had a CT scan. In the weeks after the incident, he had bad headaches every day, blurred vision, and nausea. At the time of trial, several months later, Nazzal was still unable to work and was uncertain about when he would be able to return to his job. He continued to have concussion-related symptoms, including sporadic vertigo, headaches, dizziness, and nausea.
San Francisco Police Officer Ryan Jensen, one of the uniformed officers who arrived at the scene during Nazzal's interaction with appellant, testified that he saw appellant drive Nazzal into the wall and saw Nazzal's eyes roll back in his head. After Nazzal fell to the ground, appellant did not let go of him. Jensen punched appellant once in the face, pulled him off of Nazzal and threw him to the ground. When appellant lunged back toward Nazzal, Jensen punched him again and flipped him on his stomach. Jensen attempted to handcuff appellant, but was unable to do so.
Soon thereafter, other officers arrived and assisted Jensen with handcuffing appellant. Appellant was trying to push himself up, and was "kicking, biting, spitting, screaming." Nazzal was till lying on the ground, motionless and with his eyes closed. Jensen called his name three times, but Nazzal did not respond. Once other officers were able to subdue appellant, Jensen went to Nazzal and dragged him out of the way. He was breathing, but unconscious. Jensen then went to secure the shotgun, which was in a case next to a backpack.
Several other officers also checked on Nazzal and found him unresponsive.
The parties stipulated that in November 2012, appellant stole a bicycle worth over $950 from a back porch and that at the time of the charged offenses, he was prohibited from possessing a firearm as a probation condition in a misdemeanor grand theft case.
DISCUSSION
I. Ineffective Assistance of Counsel
Appellant contends defense counsel provided ineffective assistance by failing to present evidence of appellant's schizophrenia and methamphetamine addiction, and instead attempting to present a legally unsupported defense to the grand theft of a firearm charge.
A. Trial Court Background
Part of defense counsel's trial strategy was to argue that appellant did not commit grand theft of a firearm because when he took the box from in front of Meier's house he did not know it contained a shotgun.
Before trial, defense counsel asked the court to exclude mental health related evidence at trial, arguing that, "[g]iven the high degree of prejudice attendant with mental illness and substance abuse, this evidence is more prejudicial than probative of any issue of disputed material fact, and it should be excluded." Counsel also requested the court to exclude any evidence regarding appellant's prior arrests or convictions, including his convictions for disorderly conduct, grand theft, receiving stolen property, and trespassing. The prosecutor had previously commented that admission of defense evidence related to appellant's mental health or voluntary intoxication would permit the prosecution to present evidence of appellant's prior police contacts, "including one in which he pulled a knife on an officer," to prove the knowledge element related to the assault on a police officer charges in this case.
After both sides had finished presenting their cases, during a discussion with the court regarding proposed jury instructions, the prosecutor requested that the court add language to the grand theft instruction (CALCRIM No. 1800) to inform the jury that specific intent to take Meier's package included the intent to take the contents of the package. Defense counsel vigorously objected to this language, arguing that the case the prosecutor relied on in arguing for the instruction—People v. Campbell (1976) 63 Cal.App.3d 599—was distinguishable in several ways. The court ultimately found that the instruction was correct and told counsel that it would add the following language to CALCRIM No. 1800: " 'Specific intent to take a package . . . includes the intent to take the contents of the package.' "
The version of CALCRIM No. 1800 given by the court read in its entirety:
"[Appellant] is charged in Count I with Grand Theft.
"To prove that [appellant] is guilty of this crime, the People must prove that:
"1 [Appellant] took possession of property owned by someone else;
"2 [Appellant] took the property without the owner's or owner's agent's consent:
"AND
"3 When [appellant] took the property he intended to deprive the owner of it permanently or to remove it from the owner's possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property;
"AND
"4 [Appellant] moved the property, even a small distance, and kept it for any period of time, however brief.
"Specific intent to take a package, with the meaning of element 3 above, includes the intent to take the contents of the package." (Italics added.)
Following the court's ruling, defense counsel moved to reopen the defense case to present evidence regarding appellant's psychiatric condition because "the defense theory, this entire case has relied on giving" CALCRIM No. 1800 as it was before the new language was added. Counsel stated that without the ability to argue that appellant had no intent to steal the shotgun because he did not know it was inside the box, appellant had no defense "unless we delve into what [appellant's] actual intent was at the time of the taking. I cannot do that at this time without psychiatric testimony." The prosecutor responded that the defense had made a strategic decision not to delve into appellant's psychiatric condition, which "would open up a slew of issues with regard to the [appellant's] criminal history, everything from his . . . assault on police officers in this case, his prior contact with police officers, his prior arrest history."
Defense counsel then stated, "the court knows it's always been my intention to not get into [appellant's] mental health. I think that's the simpler way of dealing with this case. [¶] But in this situation there was an additional instruction that I did not foresee. As the court knows, I read the authorities very differently than the court does. I have 11 pages of reasons why I read them differently, and I relied on my interpretation of this to simply state that we don't need to put forth the evidence of [appellant's] mental health; not that there . . . isn't some circumstantial evidence in this case from which the jury can infer that [appellant] is not of sound mind, but that is not something that I felt that I needed to rely on or present additional information about . . . . [¶] . . . I [now] have to get into [appellant's] mental health to show why he would not have been able to form an intention to permanently deprive someone of a box or its contents, or firearm."
The court denied the request to reopen the defense case to present evidence related to appellant's mental health.
During closing argument, defense counsel played the surveillance video footage from Meier's house, and described appellant as pointing to things and talking to people that did not exist, before essentially asking the jury to question whether appellant could have had the required specific intent at the moment he took the box. When the prosecutor objected to counsel's reference to appellant's mental health, noting that his mental health "is not a defense in this case," the court sustained the objection. Then, when the prosecutor reminded defense counsel, outside of the presence of the jury, that the jury was told that the parties had stipulated that "mental health was not an issue," counsel responded, "It's an issue now." The court stated that because the jury had not been instructed regarding appellant's mental health, counsel could not talk about it in closing argument. The court then admonished the jury that "the state of mental health of [appellant] is not an issue in this case. You were told that at the very beginning of this trial. That's still the situation, and you're to disregard the recent comments by [defense counsel] concerning [appellant's] mental state."
Subsequently, while the jury was deliberating, defense counsel asked to make a record regarding whether she had been ineffective, ultimately asking the court to grant appellant a mistrial. She stated, "I misunderstood and misread the law about the theft by larceny, and I should have had a psychologist or psychiatrist testify on [appellant's] behalf. I expect a psychiatrist or psychologist would have testified that [appellant] suffers from schizophrenia, the relevant symptoms of which are as follows: He can't or is unable to form plans when he is suffering from that condition and is not being medicated, which he was not at that time. [¶] His thoughts are disorganized, he's slow to think, he has a distorted perception of reality, as well as auditory and visual hallucinations."
The prosecutor responded that appellant's mental health would be relevant to the charges in this case involving the assault on a police officer and he believed that counsel had made "a wise strategic decision" to avoid a psychiatric defense in this case in light of appellant's prior contact with law enforcement officers, "including his prior assault on a police officer in which he pulled out a knife." Defense counsel disagreed with the prosecutor's assertions, stating that appellant had been acquitted of the charges in the prior case and that she was not concerned about evidence of prior police contacts being admitted.
The court denied the motion for mistrial, telling defense counsel that she had "done a very fine job"; "I don't find that you have been ineffective. And I think what's happened here has been a matter of strategy and strategic choices made. I think you're a very fine attorney, a very good attorney. You did a good job defending [appellant] in this case."
Following the jury's verdicts, appellant moved for a new trial based, in part, on the court's denial of counsel's motion for a mistrial. At the hearing on the motion, defense counsel stated that she entered into the stipulation that appellant's mental health was not an issue in this case because she thought she would be able to pursue a defense theory of accident or mistake. She did not pursue a mental health related defense, "be it tactically for good reasons, be it not tactically for bad reasons of incompetence." Because counsel believed appellant might have a claim of ineffective assistance of counsel based on how she prepared the case, she felt she had an ethical obligation to request conflicts counsel to examine her conduct in the case.
The court declined the request for conflicts counsel and denied the motion for a new trial. The court stated, "I thought you did a very fine job, [counsel], with what you were handed. You were able to get certain concessions from the People that they would not call certain witnesses, that they would not present certain evidence, how the prior would be condensed and essentially just read to the jury with respect to the violation of the probation orders, and your essential point on . . . your perception in the argument that the reholstering of the firearm by Officer Nazzal sounded just like the weapon being cocked. [¶] And . . . we had the sergeant come in who demonstrated . . . about ten times the movement of putting the weapon into the holster and what that click sounded like, and then pulling the trigger and what that click sounded like.
"I think that in a sense you're beating yourself up for things that in a sense a lot of it was out of your control, what the jury did. I think you did as best as you could under the circumstances that we have here in this case." The court found there had been no showing of ineffective assistance on counsel's part.
B. Legal Analysis
To prove ineffective assistance of counsel, a defendant must show that "counsel's representation fell below an objective standard of reasonableness" "under prevailing professional norms." (Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland).) In addition, the defendant must affirmatively establish prejudice by showing "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.) "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Id. at p. 697.)
In the present case, we need not determine whether counsel's representation was in fact deficient based on her decision to present a defense regarding the taking of the shotgun that the court ultimately found to be legally unsupported and her failure to instead present a voluntary intoxication or mental health defense. That is because we conclude appellant was not prejudiced by any of counsel's alleged failings. (See Strickland, supra, 466 U.S. at p. 697.)
In support of his ineffective assistance of counsel claim, appellant points to court ordered mental health evaluations of appellant prepared by the California Department of Corrections and Rehabilitation (CDCR) before sentencing, pursuant to section 1203.03, in which experts at CDCR reported that appellant had suffered from auditory hallucinations for many years and diagnosed him with schizophrenia, undifferentiated type and two substance abuse disorders. In addition, at defense counsel's request, two psychiatrists evaluated appellant. Dr. Terry Kupers diagnosed appellant with schizophrenia, with "a history of multiple psychotic episodes and a positive history of methamphetamine use." Unlike in his CDCR interview, appellant told Dr. Kupers he could not recall the incident that led to his most recent arrest. Dr. Kupers nonetheless believed the incident "most likely involved some combination of acute psychosis along with methamphetamine intoxication." Dr. Jeff Gould, who also evaluated appellant, concluded that he suffered from psychotic disorder, unspecified, and substance abuse disorder. Dr. Gould believed appellant was "most likely suffering from active psychotic symptoms" at the time of the current offenses. Dr. Gould also reported that appellant's medical records reflected that he "endorse[d] methamphetamine use" on the day of the current offenses.
Appellant asserts that this evidence would have been helpful to the defense because it revealed that counsel "had considerable evidence that appellant suffered a psychotic episode, or break with reality, at the time in question," which "would have been a complete defense to all the charges."
What appellant does not note, with respect to the CDCR's mental health evaluations, is that appellant told one evaluator that he "was remorseful to the victim of his offense," i.e., Nazzal, but also acknowledged that "when the police came they tried to arrest him and he put up a fight because he did not want to go back to jail." He also "indicated that the reasons for his action this time did not relate to drugs or his mental state. He stated he was sober but had used a couple of days before." Appellant informed another evaluator that "he often steals to support himself and his drug habit, and planned to sell the firearm for drugs." He also told this evaluator that he resisted the officers because " 'I just didn't want to go back to jail. I guess I was a little worried.' "
The mental health evidence cited by appellant does show that the experts all agreed that appellant was mentally ill, to which Nazzal indirectly referred during his testimony when he described appellant as "looking straight through me" and appearing to be "under the influence of something." The CDCR experts' reports further show, however, that, according to appellant's own statements, (1) he was sober at the time of the offenses, (2) he intended to sell the shotgun for drugs, and (3) he fought Nazzal, knowing he was a police officer, because he did not want to return to jail. Thus, evidence regarding appellant's mental health or voluntary intoxication most likely would not have shown that he was so mentally ill or intoxicated that he could not form the specific intent to permanently deprive Meier of the shotgun when he took it and subsequently attempted to assemble it, or that he did not know that Nazzal was a police officer when he attacked him. (Cf. In re Avena (1996) 12 Cal.4th 694, 724 ["In petitioner's case, we have no credible evidence that he smoked PCP on the day in question" and "even if we assume he did use drugs on the day in question, there is no evidence showing how much he ingested or the degree of intoxicating effect, if any, it had on him"] & p. 725 [conclusion that defendant could not meaningfully reflect on his criminal actions "is contradicted by petitioner's seemingly goal-directed behavior that night, which exhibited a much higher degree of mental functioning than [mental health experts] would have us believe"].)
We also observe that had defense counsel presented evidence of appellant's mental health in an attempt to demonstrate a lack of specific intent to steal the box or a lack of awareness that he was attacking a police officer, the prosecutor stated that he would have introduced evidence of appellant's prior contact with police officers and arrest history to counter any defense evidence suggesting that appellant did not have the intent required to commit the charged crimes. --------
Appellant also argues that without the mental health or voluntary intoxication evidence, the prosecutor was able to place appellant in a false light during closing argument, as when he stated that appellant's "job that evening was to steal, to . . . take a package that wasn't his, walk around town for a little while, sit down, discover this nice fancy shotgun and put it together." The prosecutor also described what appellant might have been thinking when he saw Nazzal: " 'I've got this fancy double-barreled shotgun next to me. I can get away with this. All I've got to do is get him out of my way. . . .' " As already discussed, however, the mental health evidence in the record includes appellant's own statements that he intended to sell the shotgun for drugs and that he attacked Nazzal because he did not want to return to jail. The prosecutor's comments did not place appellant in a false light.
Appellant has not demonstrated "that there is a reasonable probability that, but for counsel's [allegedly] unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.)
II. Alleged Prosecutorial Misconduct in Closing Argument
Appellant contends the prosecutor committed misconduct during his rebuttal closing argument by attempting to elicit sympathy for Nazzal.
A. Trial Court Background
During his rebuttal argument, the prosecutor stated: "I stressed to you during opening and during my closing earlier that we are evaluating Joshua Nazzal's actions, and when you go back into that jury room I urge you to evaluate his actions. I'm confident that you can look at what he did, and ask yourself the question: What could he have done differently? What should he have done? Because look at all the things he didn't do. Look at how the interaction between the two didn't escalate into some use of deadly force. He approached with caution. He didn't even put his hands on the defendant before he was pushed away and the defendant took off.
"What did he do wrong? What did Joshua Nazzal do to deserve being attacked by Joshua Boling?"
At that point, defense counsel interjected an objection pursuant to section "352, improper appeal." The court overruled the objection, but admonished the jury: "Ladies and gentlemen, once again, this is argument. Comments of counsel are not evidence and you are the ones to determine if it's helpful or not based upon what the evidence was in this case."
B. Legal Analysis
" ' " 'A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." ' " [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it " ' "involves the use of deceptive or reprehensible methods to attempt to persuade either the court or jury." ' " [Citation.]' [Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 819.) The defendant need not show that the prosecutor acted in bad faith. (Id. at p. 822.)
" 'To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' " (People v. Dykes (2009) 46 Cal.4th 731, 771-772.)
Here, according to appellant, the prosecutor improperly appealed to the jury's sympathy, thereby "inflaming the jury against appellant," when he asked during his argument, "What did he do wrong? What did Joshua Nazzal do to deserve being attacked by Joshua Boling?" (See People v. Mayfield (1997) 14 Cal.4th 668, 803 ["it is misconduct for a prosecutor to make comments calculated to arouse passion or prejudice"].)
The prosecutor's comment related to whether Nazzal had used excessive force with appellant, an important issue in the case, considering that "[t]he long-standing rule in California and other jurisdictions is that a defendant cannot be convicted of an offense against a peace officer ' "engaged in . . . the performance of . . . [his or her] duties" ' unless the officer was acting lawfully at the time the offense against the officer was committed. [Citations.]" (In re Manuel G. (1997) 16 Cal.4th 805, 815.) Indeed, defense counsel had addressed this issue during her closing argument, stating, for example, that when Nazzal arrived on the scene, he found "a hapless, homeless man," but "Nazzal is so frightened by this potential situation that when he's . . . 40 feet away from [appellant] just sitting there, not bothering anyone, he draws his firearm and points it at [appellant], and starts yelling at him to do things." It was the prosecution's burden to show that Nazzal had acted lawfully in his interaction with appellant, and the prosecutor's question regarding whether Nazzal "deserved" the attack, in context, simply addressed this issue of excessive force. Appellant has not shown a reasonable likelihood that the jury understood or applied the prosecutor's brief comment in an improper manner. (See People v. Dykes, supra, 46 Cal.4th at pp. 771-772.) This is particularly true in light of the court's admonition, which reminded the jury that comments of counsel were not evidence.
DISPOSITION
The judgment is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.