Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. SWF028365, J. Thompson Hanks, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
Martha L. McGill, 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, James D. Dutton, and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster, Acting P.J.
This is an appeal by Martin Blake Bomhard, defendant and appellant (hereafter defendant), from the judgment entered after a jury found him guilty of attempted carjacking in violation of Penal Code section 664/215, subdivision (a) (count 1), making criminal threats in violation of Penal Code section 422 (count 2), and also returned true findings on the special allegations that defendant personally used a knife, a deadly weapon within the meaning of Penal Code sections 12022, subdivision (b)(1) and 1192.7, subdivision (c)(23). After defendant waived his right to a jury, the trial court found defendant had previously been convicted of two serious felonies within the meaning of the three strikes law, Penal Code sections 667, subdivisions (c) and (e)(2)(a) and 1170.12, subdivision (c)(2)(a), and within the meaning of Penal Code section 667, subdivision (a). The trial court sentenced defendant on count 1 to the mandatory term under the three strikes law of 25 years to life, consecutive to a determinate term of 11 years on the knife use and prior serious felony allegations.
Defendant contends in this appeal that he was denied the effective assistance of counsel because his trial attorney did not move to suppress the witnesses’ in-court identifications of defendant that defendant contends were tainted by an unduly suggestive pretrial photographic lineup in which the photograph of defendant was the only one that depicted a person with a tattoo on his face (flames over his left eyebrow). Next, defendant contends the prosecutor engaged in misconduct during closing argument when he improperly attempted to quantify the concept of reasonable doubt. As his third claim of error, defendant contends the trial court committed reversible error by permitting the prosecutor, over defendant’s objection, to introduce evidence of defendant’s poverty to prove defendant’s motive to steal. Finally, defendant contends that if not separately prejudicial, the cumulative effect of the errors deprived defendant of his right to a fair trial and therefore violated the due process clause of the Fourteenth Amendment to the United States Constitution.
We conclude if error occurred it was harmless in this case. Therefore we will affirm the judgment.
FACTS
The pertinent facts are undisputed. On the morning of May 18, 2009, around 6:30, Virgil Brendlinger, Jr., pulled into the parking lot of the Staples store in Hemet where he worked as the general manager. After parking his car (a BMW 530i), Brendlinger opened the driver’s side door and listened to the radio. A man Brendlinger later identified as defendant, walked up and said, “Give me your car. Give me your fucking car.” Brendlinger said, “You’re kidding, ” as he got out the car. Defendant held a knife with a three- to four-inch blade to Brendlinger’s throat and said, “No. Give me your fuckin’ car.” Brendlinger moved away from the car and defendant got in. When defendant was unable to find the key, which Brendlinger had left on the center console, he started yelling at Brendlinger to give him the keys. Brendlinger, in turn, yelled at defendant to get out of his car and also yelled to people leaving a nearby restaurant to call the police. Defendant got out of the car and left. Brendlinger followed but lost sight of defendant when he walked through Steve’s Burgers. Hemet Police Officer James Duncan arrived within 10 minutes and interviewed Brendlinger. Brendlinger later that day identified defendant from a photographic lineup.
We take the facts from the parties’ respective briefs unless otherwise indicated.
Ronald Simpson was at Mia’s Café having breakfast with his friend William Wolter when he looked out the window and saw defendant approach Brendlinger’s car. It looked to Simpson as though defendant and Brendlinger were arguing and about to get into a fight. Simpson saw Brendlinger get out of the car and defendant get in. Brendlinger looked scared. Defendant looked as if he were trying to start the car while Brendlinger looked like he was trying to dial his cell phone. Defendant then got out of the car and walked away. It appeared to Simpson that defendant had something in his hand as he got out of the car. The next morning, Simpson identified defendant from a photographic lineup.
William Wolter was with Simpson having breakfast at Mia’s Café on the morning in question. When Simpson said it looked like two guys in the parking lot were about to get into a fight, Wolter looked out the window and saw Brendlinger get out of a BMW and move away from the vehicle. It looked to Wolter like Brendlinger was trying to use his cell phone while defendant was trying to start the car. Defendant then got out of the car and walked away. About 10 to 15 minutes earlier, when Wolter was on his way to Mia’s Café, he saw defendant walking in the direction of Mia’s Café. Wolter identified defendant from a photographic lineup as the person he saw walking toward the restaurant and the person he saw get in Brendlinger’s car.
Just after 12:00 noon that same day, Officer Duncan arrested defendant about one and one-half miles from the incident scene. Defendant was dressed as the witnesses had described (no shirt, black shorts, black baseball cap, white shoes and white socks) and he had tattoos on his chest, back, and arms as the witnesses had also described. Officer Duncan obtained recorded footage from the surveillance camera at Steve’s Burgers of the pertinent date and time. Although the recording is not clear enough to identify specific facial features, it does show a person dressed like defendant, about defendant’s size and stature, with a discernible pattern of tattooing on his bare torso and arms.
Additional facts will be discussed below as pertinent to the issues defendant raises on appeal.
DISCUSSION
Defendant first contends he was denied the effective assistance of counsel because his trial attorney did not object that the witnesses’ in-court identifications of defendant were the product of an unduly suggestive out-of-court lineup.
1.
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
Defendant contends he was denied the effective assistance of counsel at trial because his attorney did not object to the witnesses’ in-court identifications of defendant, which defendant contends were the products of an unduly suggestive out-of-court photo lineup in which defendant was the only person depicted with facial tattoos (a leaf or feather design over his left eyebrow). We disagree.
A. Standard of Review
In order to establish a claim of ineffective assistance of counsel, defendant must “demonstrate (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. [Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in the outcome. [Citations.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other cases, Strickland v. Washington (1984) 466 U.S. 668.) In evaluating counsel’s actions, “A court must indulge a strong presumption that counsel’s acts were within the wide range of reasonable professional assistance. [Citation.] Thus, a defendant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. [Citation.]” (People v. Dennis, supra, at p. 541.)
B. Analysis
Hemet Police Officer James Duncan prepared a photo lineup comprised of six photographs (colloquially referred to as a “six pack”), one of which was of defendant. Defendant’s photograph is the only one that depicts a person with tattoos on his face. Officer Duncan testified at trial that he identified defendant as a suspect based on information he had obtained from another Hemet police officer. Defendant fit the physical descriptions Brendlinger, Simpson, and Wolter had provided to Duncan. Duncan explained that the five other photographs included in the photo lineup were obtained from a computerized photo database and were selected by the computer based on physical characteristics, such as height, weight, and ethnicity that he had entered as selection criteria. According to Duncan, the computer cannot screen for facial tattoos, which purportedly explains why defendant’s photograph is the only one with facial tattoos. Duncan also stated that Brendlinger identified defendant from the photo lineup before defendant was arrested. Duncan showed Simpson and Wolter the photo lineup the morning after the incident and they each identified defendant. At trial, Simpson and Wolter both testified they were 100 percent certain they had identified the correct person from the photo lineup. Neither Simpson nor Wolter could identify defendant in court. Simpson said defendant “looks familiar, but 100 percent I couldn’t say.” Wolter could not identify defendant because too much time (seven months) had passed since the incident.
Officer Duncan testified at trial that defendant was five feet eight inches tall, weighed 210 pounds, had black hair, is “Hispanic and white, ” and at the time of his arrest was 40 years old.
In order to prevail on his ineffective assistance of counsel claim defendant must show first that his trial counsel’s performance was deficient because a reasonably competent trial attorney would have moved to exclude the out-of-court identifications of defendant. In order to show prejudice as a result of that deficient performance, defendant must show trial counsel would have prevailed on that motion. (People v. Grant (1988) 45 Cal.3d 829, 864-865; People v. Gonzalez (1998) 64 Cal.App.4th 432, 438.)
“‘Due process requires the exclusion of identification testimony only if the identification procedures used were unnecessarily suggestive and, if so, the resulting identification was also unreliable.’” (People v. Avila (2009) 46 Cal.4th 680, 698.) The constitutional concern is whether the identification procedure was so impermissibly suggestive that it creates a very substantial likelihood of misidentification under the totality of the circumstances. (People v. Cunningham (2001) 25 Cal.4th 926, 989; Simmons v. United States (1968) 390 U.S. 377, 384.) “‘In order to determine whether the admission of identification evidence violates a defendant’s right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) 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 witness’s 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. Kennedy (2005) 36 Cal.4th 595, 608)
Brendlinger testified he was certain of his identification of defendant both from the photo lineup and at trial because he would never forget a face, particularly “when a knife is at my throat.” Not only did he have ample opportunity to view defendant’s face at the time of the attempted carjacking, which he testified lasted between one and two minutes, Brendlinger also followed defendant for several minutes and as a result was able to better observe defendant’s physical characteristics. Brendlinger accurately described defendant’s appearance and physical characteristics to Officer Duncan. Only a few hours had elapsed between the time of the attempted carjacking and Brendlinger’s identification of defendant from the photo lineup.
Defendant points out that although he was correct about all other details, Brendlinger overestimated defendant’s weight by 40 to 60 pounds and did not mention the tattoos over defendant’s left eyebrow. The purported inaccuracies are minor and do not undermine the reliability of Brendlinger’s identification of defendant as the person who committed the attempted carjacking. A weight estimate is just that, an estimate. Brendlinger estimated that defendant weighed between 250 and 270 pounds, which is close enough to defendant’s actual weight of 210 pounds to eliminate the possibility of misidentification. Brendlinger’s failure to mention the tattoos over defendant’s left eyebrow also does not undermine the reliability of his identification of defendant because defendant was wearing a baseball cap at the time of the attempted carjacking and that hat could have obscured the tattoos. In short, defendant has failed to demonstrate that his trial attorney would have prevailed on a motion to exclude Brendlinger’s in-court and out-of-court identifications of defendant. Consequently, even if we were to assume, without actually deciding, trial counsel should have made such a motion, defendant has not demonstrated resulting prejudice.
Simpson and Wolter both testified that, like Brendlinger, they were 100 percent certain at the time they selected his photograph that defendant was the person they had seen the previous morning. Wolter and Simpson both saw defendant’s face when defendant got out of Brendlinger’s car even though they were 60 to 75 yards away. Their estimates of defendant’s height and weight were close enough to defendant’s actual height and weight to warrant confidence in the accuracy of their identification of defendant as the person they saw arguing in the parking lot with Brendlinger.
For these reasons we must conclude that defendant has failed to meet his burden of demonstrating he was denied the effective assistance of counsel. Even if trial counsel should have made a motion to exclude the witnesses various identifications of defendant as the person who committed the attempted carjacking, defendant has failed to show prejudice, i.e., that the motion would have been granted.
2.
PROSECUTORIAL MISCONDUCT CLAIM
Defendant contends the prosecutor twice committed misconduct during closing argument, first by improperly attempting to quantify the concept of reasonable doubt, and next by urging the jury to find defendant guilty based on the odds that someone other than defendant might have committed the crime.
In the first instance of purported misconduct the prosecutor stated, “Now, we talked about the standard of proof. We talked about this in jury selection. I don’t have to prove to you [sic] any doubt, or a shadow of a doubt. What I have to prove to you is beyond a reasonable doubt this is the man who did those things to Mr. Brendlinger. I am not trying to say it’s just 50/50. Doesn’t say it’s 95 percent. When the Judge [sic] reads you the instruction, there’s no number assigned to it. It’s clearly not 50/50. It’s more substantial than that. But it’s not an absolute certainty because you can’t prove anything in a courtroom to a complete absolute certainty. There’s always some possible explanation. That’s why we have these trials.”
Defendant contends the prosecutor’s argument quantifies the concept of reasonable doubt, and is therefore improper. We disagree.
At the outset we note that defendant did not object to the prosecutor’s argument regarding reasonable doubt and as a result has not preserved his prosecutorial misconduct claim for review on appeal. (People v. Frye (1998) 18 Cal.4th 894, 969-970 [“to preserve a claim of prosecutorial misconduct, the defense must make a timely objection and request an admonition to cure any harm”]; People v. Hill (1998) 17 Cal.4th 800, 820 [general rule is that claim of prosecutorial misconduct is not preserved for review on appeal unless the defense makes timely objection and requests an appropriate admonition].) Moreover, we do not share defendant’s view that the prosecutor’s argument was improper. “[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. [Citation.]” (People v. Marshall (1996) 13 Cal.4th 799, 831.) The prosecutor argued, as trial counsel acknowledged, that reasonable doubt could not be equated to a numerical percentage and therefore could not be quantified.
Later in his closing argument, the prosecutor urged the jurors to consider the odds that someone other than defendant could have committed the crime. After first acknowledging that each detail about defendant’s appearance, from his clothing to his tattoos, was not uncommon when considered individually, the prosecutor then argued, “And I have already said this: What’s not common is to find somebody who has all of these factors all going on at the exact same time. Then to think that we’re talking about an area really only this big [presumably referring to a map or diagram], at a very specific point in time, on a very specific day. And you have to ask yourself, of all these factors: a mixed race, a person who would look white and/or Hispanic, a certain height, weight, wearing very specific clothing with very specific and perhaps unusual tattoos, and how dense and how many there are, with the facial piercing, with white shoes, and then ask yourself what are the odds you’d find how many people that fit that description in an area about that big on one specific day at about one specific time?” When defense counsel objected and moved for a mistrial, the trial court denied the motion.
In his final closing argument, the prosecutor returned to theme: “I don’t know what the odds or statistics of how many people in Hemet have that exact background or clothing description, but it’s like a lottery ticket. I have never won yet. I am still here working. But a lot of us will buy a Lotto ticket. You get one number, maybe you get lucky and get two. But this is like a big Lotto ticket and getting all five numbers and the Mega when you consider the odds or [sic] they must be that this individual being where he’s found, at the time he’s found, the place he’s found, with his clothing right down to his little floppy belt on his clothes, when you consider all of that, it’s not one piece in isolation, it’s the totality. When you weigh it in its entirety, it’s not -- There isn’t a chance that it’s somebody else. If there is a chance, it’s the same odds that one of you buys a ticket today and wins the Lotto.”
Defendant contends the prosecutor’s argument was improper because it again urged the jurors to equate reasonable doubt with statistical odds, and because there also was no evidence presented to support such an analysis. We agree.
The prosecutor improperly asked the jurors to base their decision on evidence that was not presented at trial, namely the statistical odds of winning the lottery with a single lottery ticket. Because there was no evidence presented to support the argument, we need not determine whether evidence equating the statistical odds of winning the lottery to the probability of defendant being not guilty could have been presented at trial. Defendant concedes that he did not object to the prosecutor’s argument but he claims an objection would have been futile given the trial court’s ruling on defendant’s mistrial motion. We do not share defendant’s view.
Defendant’s previous objection was that the prosecutor attempted to quantify reasonable doubt. The argument currently at issue not only equates probable cause with statistical probability, it also is objectionable because it is not based on evidence that was presented at trial. Defendant did not object on the latter ground. In failing to do so he has waived the issue for review on appeal because an objection and timely admonition could have cured the problem.
But even if we were to agree that an objection was futile and therefore unnecessary, we nevertheless would conclude that the prosecutor’s argument, even though improper was harmless. Under federal law, a prosecutor’s improper remarks or questions constitute misconduct if they “‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ [Citation.]” (Darden v. Wainwright (1986) 477 U.S. 168, 181.) “‘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 trial court or the jury.”’” [Citation.]’ [Citation.]” (People v. Hill, supra, 17 Cal.4th at p. 819.) “Misconduct that infringes upon a defendant’s [federal] constitutional rights mandates reversal of the conviction unless the reviewing court determines beyond a reasonable doubt that it did not affect the jury’s verdict. [Citations.] A violation of state law only is cause for reversal when it is reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the untoward [argument]. [Citations.]” (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.)
Under any view of the record, the prosecutor’s argument was misconduct under state law but not federal law. Therefore, that misconduct requires reversal of the judgment only if we can say it is reasonably probable the jury would have reached a result more favorable to defendant if that misconduct had not occurred. The evidence establishing defendant’s identity as the person who attempted to steal Brendlinger’s car is significant. Brendlinger identified defendant at trial and in the photo lineup as the person who committed the attempted carjacking. Both eyewitnesses also identified defendant from the photo lineup. In addition the jury saw the video recording from surveillance cameras at Steve’s Burgers taken at the time Brendlinger followed defendant into that establishment. The video, although not the best quality, nevertheless clearly depicts a person identical to defendant in stature and weight. The person is clothed exactly as the victim and witnesses described defendant—shorts, no shirt, shoes, socks—and has tattoos on his upper body.
In light of the noted evidence it is not reasonably probable the jury would have reached a result more favorable to defendant if the prosecutor had not made the improper argument during closing.
3.
EVIDENCE CLAIM
Defendant contends the trial court erred in admitting evidence, over defendant’s objection, that defendant was unemployed and needed money. We agree the evidence was inadmissible.
In a pretrial motion, the trial court ruled the prosecutor could not present evidence that defendant was homeless, did not have a job, and needed money, but he could present evidence that the day before the attempted carjacking, defendant told a Hemet police officer that defendant did not have a car. Despite the pretrial ruling, the trial court overruled defendant’s objection during trial when the prosecutor asked the pertinent witness whether defendant said anything “in regard to whether or not he had any money or had a job or anything of that nature?” As a result the witness, Hemet Police Officer Francisco Montes, testified that defendant did not have a job, did not have any money because he was waiting for his SSI check to arrive, did not have a car, and was upset because he did not have a place to live.
Evidence of the defendant’s poverty is inadmissible to prove the defendant’s motive to commit a crime. (People v. Koontz (2002) 27 Cal.4th 1041, 1076 [evidence of a defendant’s poverty “generally may not be admitted to prove a motive to commit a robbery or theft; reliance on such evidence is deemed unfair to the defendant, and its probative value is outweighed by the risk of prejudice”].) The trial court’s pretrial ruling was correct; unfortunately the trial court did not abide by that ruling during trial. As a result, the prosecutor not only introduced evidence to show defendant was poor he also argued during closing that defendant fit the “profile of a person who might commit a crime: no job; no money.” When defendant moved for a mistrial during closing argument based on this and the prosecutor’s previously discussed statistical probability argument, the trial court denied that motion. In doing so, the trial court remembered the issue had been discussed before trial but apparently forgot the ruling: “We talked about this before trial. [The prosecutor’s] reference is the defendant needing money or something because he’s unemployed, out of work, has no funds, certainly goes to motivation.”
Although the trial court erred in admitting evidence of defendant’s poverty as a motive to commit the crime, that error requires reversal of the judgment only if it is prejudicial in that it resulted in a miscarriage of justice. (Evid. Code, § 353.) In this context, a miscarriage of justice occurs when this court is able to say, absent the erroneously admitted evidence, it is reasonably probable the jury would have reached a result more favorable to defendant. (People v. Watson (1956) 46 Cal.2d 818.)
For the reasons previously discussed it is not reasonably probable the jury would have reached a result more favorable to defendant in this case if the trial court had excluded evidence to show defendant was poor and therefore had a motive to commit the crime. Whether considered alone or collectively the errors in this case were harmless in light of the strong evidence connecting defendant with the crime, namely, the victim’s identification of defendant from the photo lineup and in court as the person who attempted to take his car, and the eyewitnesses’ identification of defendant from the photo lineup. Therefore, we reject defendant’s claim that the erroneous admission of evidence was prejudicial.
4.
DUE PROCESS CLAIM
Defendant’s final claim on appeal is that the errors in this case considered collectively had the effect of depriving defendant of his due process right under both the state and federal Constitutions to a fair trial. Although we conclude that two errors occurred in this case—the prosecutor committed misconduct by arguing facts not in evidence and the trial court erroneously admitted evidence of defendant’s poverty to show his motive to commit the crime—we have concluded both errors were harmless.
As the Supreme Court observed in People v. Hill, “Lengthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice. [Citations.] Nevertheless, a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error. [Citations.]” (People v. Hill, supra, 17 Cal.4th at pp. 844.) We cannot say that the two errors in this case when considered together rise to the level of reversible and prejudicial error. Defendant had a fair albeit not perfect trial; the former is what is constitutionally required.
DISPOSITION
The judgment is affirmed.
We concur: King, J., Miller J.