Opinion
A114925
4-16-2008
THE PEOPLE, Plaintiff and Respondent, v. LAWSON BRYANT, Defendant and Appellant.
NOT TO BE PUBLISHED
The Lake County District Attorney filed an information charging appellant with committing the following five offenses on December 10, 2005: two counts of robbery (Penal Code, § 211), a single count of assault (§ 245, subd. (a)(1)), and two counts of making threats to commit a crime which will result in death or great bodily injury (§ 422). After the jury was selected, and on the prosecutions motion, the court dismissed all but the two robbery counts. A jury convicted appellant of both counts. On August 11, 2006, appellant was sentenced to five years, the aggravated term, on the first count and one year, to be served concurrently, on the second count. This timely notice of appeal was filed on August 16, 2006.
Unless otherwise indicated, all statutory references are to the Penal Code.
That same day appellant was sentenced to 180 days, concurrent, on an unrelated misdemeanor conviction.
FACTS
The Prosecutions Case
As there was no doubt the victims had been robbed, the most significant factual dispute was the validity of the eyewitness identifications of appellant as the perpetrator, which the prosecution and defense both focused upon.
At about 5:15 p.m. on December 10, 2005, April Caron and her daughter Kristi Clarke walked to the nearby Parkview Market in Clearlake to shop for groceries. Knowing it would get dark before they returned home, Caron wore a light strapped to her head. Caron testified that on the way to the store, a man she later identified as appellant came up behind them and asked whether they could spare some change. After they said they could not, the man said "Oh, well, Merry Christmas anyway," and walked on by. Caron described the man as black, "heavyset," and wearing a hooded sweater. She could see his face when he asked for change because he was "fairly close" and "it wasnt that dark yet." As Caron and Clarke pulled open the door to the market, the man who had asked them for change was simultaneously pushing it open and the three of them were "practically nose to nose." The man, who "kind of growled" when he came out, again asked Clarke if she had any change and she again said she did not. While she and Clarke were in the store shopping, Caron heard others complaining to the clerk, Jared Winn, that the man who just left was asking everybody for money. Winn testified that he then went outside and "told the guy he had to leave because he was bothering people for money and panhandling was against the law."
After Caron and Clarke left the store Caron turned on her "headlight," because it had turned dark. After the two had walked for a while, Caron heard footsteps behind her. Turning around, she "flashed" her light to see who it was and "spotted a big figure, dark figure," walking in the same direction they were on the opposite side of the street. As the man got closer, she told her daughter to pick up the pace. As they reached the top of a hill, where there was a street light, the man moved faster, crossed to their side of the street, caught up to them, and began yelling at them for "telling on him." The man then knocked Caron down and began repeatedly punching her in the face and head. At one point he "yanked" her glasses off and flung them away. Caron testified she was able to see the mans face because he was so close and had not yet pulled his hood up, she "had a light on her head," and there were other lights from a house and passing cars. The man was "mad as hell," yelling " `You told on me. I want to teach you [not] to tell on me or anybody else you dont know, you bitch. " She also recognized the man as the one who had earlier asked for money and they had seen at the store because he had the same "rough voice" and she previously had seen him on the bus. Caron stated that "[i]ts not like Ive never heard him or never seen him. I just didnt know him, didnt want to know him. He lives two blocks from where I live. Its kind of hard not to notice someone in the neighborhood."
Seeing her mother prostrate on the ground being beaten, Clarke repeatedly pleaded with the man to stop and finally threw her body protectively over Carons, at which point the man started beating Clarke as well. At one point he grabbed the womens shopping cart and tossed it and its contents down the hill. Finally he stopped hitting the two and said: " `All right. I want your money, you bitches, and I want it now. And I want all of it. Dont hold out on me. " Caron testified that when Clarke gave him 50 cents, which she said was all she had, the man threatened to kill her, stating, " `I know you got more than that, ho. Dont hold out on me. " Caron then gave the man all the money she had, saying, " `Here. Its $8. Thats all we got. Now go away. " Before running away, the man said: " `Remember what I told you. You dont tell on me. Ill kill you. Ill kill you both. " When presented by the police with a photo lineup, Caron identified the attacker as appellant with "100 percent" certainty. She also confidently identified appellant in court. On cross-examination, Caron testified that the physical assault lasted a "couple of minutes," and appellant pulled his hood up only when he got close. Though there was no moonlight that night, there were a lot of stars. After Caron reiterated that she had seen appellant previously around Clearlake Park, and that he lived two blocks from her, defense counsel asked, "isnt it possible that when you were assaulted by someone who [is] African American, you just kind of assumed or subliminally in your mind" identified "the black person you had known previously?" Caron replied that this was not possible, noting that other black people live in Clearlake Park and "[s]ome of them are our friends." When defense counsel suggested Caron "couldnt make out" who her assailant was because her testimony on direct "was that it was just a dark figure." Caron responded, "I couldnt make out his face from that distance at first. But that body shape you cant miss. Come on. Wearing the same clothes all the time." Asked, "[a]rent there a lot of other people that wear clothes like that?" Caron answered: "Yeah. But they dont live two blocks from me and I dont see them all the time. And they dont ask me for money when Im going up the hill and they dont get right up into my face when Im coming into a grocery store and hes coming out."
Clarkes testimony was much the same as Carons, and she too stated she was "a hundred percent certain" the man who accosted them was appellant.
Jarred Winn, the clerk at the Parkview Market, testified that appellant was panhandling at the store on December 10, 2005 and had done so on earlier occasions. On December 10th, while he was at the cash register serving customers, Winn saw appellant standing outside asking people for money. Earlier, while appellant was inside the store, Winn asked him to leave "because my boss had actually talked to me about it beforehand saying that he [appellant] was panhandling and that he was removed from the property one time before for it so if I ever saw him doing it again to ask him to leave the property." Winn said appellant came into the store frequently, and he had seen him there "countless" times. Like Caron and Clarke, Winn initially identified appellant from a photo lineup, and thereafter in court, with a high degree of certainty.
Clearlake Police Officer Richard Towle, who arrived at the scene at about 6:40 p.m., obtained a general description of the perpetrator from Caron and Clarke and then interviewed Jarred Winn, who provided the "nickname or alias" appellant used, which was "June" or "Junior." Towle passed this information on to an officer more familiar than he was with the neighborhood, who told him that appellant used that nickname. He then placed appellants picture and those of five others in a so-called "six pack of photos" which he separately showed Caron, Clarke, and Winn, telling each of them that the perpetrator might not be in the photo lineup and that it is just as important to eliminate a person as to identify the perpetrator. Caron, Clarke, and Winn each "instantly" identified appellant, and Caron and Clarke both said they knew appellant from prior contacts, and Clarke told him "he rides the bus with her." Towle later went to appellants residence, which was two blocks from Carons residence, and arrested him. Later in the trial, when Towle was briefly recalled as a witness, he stated that the five photographs of other persons in the photo lineup shown Caron, Clarke, and Winn, were all the same: that is, the five other persons were in "identical positions" to that of appellant, and all six photos were of the same "quality and features."
The Defense
Mirtle Bryant, appellants mother, testified that appellant, who was then 27 years old and had never been employed, receives monthly social security and SSI disability payments totaling approximately $700 per month and, because he lives with her, does not need to pay rent or buy food. The social security payment was attributable to her husband, and the SSI payment was attributable to what the witness described as appellants "mental retardation." Mrs. Bryants husband contracted asbestosis during his employment and had, in 2005, received a financial settlement, including a check for "a hundred and some thousand" dollars. Because of this, she and her husband were able to provide appellant money whenever he needed it. Appellant had never been violent with her or her husband. However, on occasions when appellant drank alcohol, she had to call the police "to get him off the property until he sobers up."
Appellant testified on direct examination that he was not hanging around the Parkview Market panhandling people on December 10, 2005, but was at home that entire day. He denied robbing or assaulting Caron and Clarke, or demanding money from them, or threatening to kill them for telling on him. He also stated that on the day in question he possessed $400, suggesting he had no need to panhandle. When asked during cross-examination whether he had "a dark mark" on the left side of his face, appellant said "its a birthmark or from being in tears a lot since I was younger." Appellant also admitted he was convicted of misdemeanor domestic violence regarding a girlfriend. Finally, appellant acknowledged that he had sometimes seen Kristi Clarke on the bus, and had seen April Caron walking around the neighborhood "picking up cans and stuff." During redirect, appellant stated that he had not owned a hooded sweatshirt since 1990; however, on recross-examination he was shown a photograph of himself wearing such a sweatshirt. Asked to read the date written on the back of the photograph, he stated it was "06/23/2005."
At the conclusion of appellants testimony, the district attorney was allowed to recall Officer Towle to provide rebuttal evidence. His brief testimony was that when he arrested appellant in front of his house on December 24, 2005, and transported him to county jail, appellant was wearing a dark hooded sweatshirt. On cross-examination, Towle explained that he obtained the photos he put in the photo lineup from a statewide databank of photos taken by the Department of Motor Vehicles for use on drivers licenses and California ID cards. "[Y]ou put in basically the age, the approximate weight, and the nationality of the subject that youre attempting to pull up a lineup of. And then you submit a request for a six-pack, and then they give you, determined on what you specified, what the closest matches would be for a photo lineup. [¶] . . . [¶] [The databank] selects five other people, and then you just click on the screen and then it fills in the blanks [with five photographs]." If the requesting officer is satisfied that the five others selected are similar to the suspect, he prints them out, otherwise he requests one or more replacement photos. Towle also testified that at the time he presented the photo lineup to Caron, Clarke and Winn, he read each of them the admonition specified in the "Simmons decision" (Simmons v. United States (1968) 390 U.S. 377), and that each of them indicated he or she understood it by signing the lineup photo.
A written copy of the "Simmons decision" admonition given Caron, Clarke and Winn by Officer Towle, which each signed, stated that the witness was told: "You will be asked to look at several photographs. The relative position and quality of the photographs have no significance. [¶] You will be alone with me when you look at these photographs. The fact that the photographs are shown to you should not influence your judgment. [¶] You should not conclude nor guess that the photos contain the picture of the person who committed the crime. [¶] You are not obligated to identify anyone. [¶] It is just as important to free innocent persons from suspicion as to identify guilty persons. [¶] Please do not discuss the case with other witnesses nor indicate in any way you have or have not identified someone."
Dr. Robert Shomer, a forensic psychologist, provided lengthy testimony for the defense as an expert on eyewitness identification. One of the major findings of his research is that "[w]hats going on in the situation controls the accuracy and the detail with which we absorb things. And high stress knocks out the processes necessary for accuracy." "Theres a tremendous amount of similarity among people. And in a high stress situation, the very processes we need to differentiate one similar looking person from another are overwhelmed by other priorities, fighting the person off, staying alive, dealing with the situation." Therefore, because it creates more stress, seeing the perpetrator up close does not necessarily improve accuracy. Dr. Shomer also opined that "[i]f the person [identified] looks like you, you could be more accurate. If its somebody of another race, you are less accurate, significantly less accurate." Familiarity is also associated with accuracy. "[T]he problem is that the familiarity has to be announced immediately and documented. It cant be an assumption that is tacked on afterwards." Such "after-the-fact assumptions" are often a source of erroneous identifications, and "delayed announcement of familiarity is known as a classic danger signal associated with erroneous identification."
According to Dr. Shomer, the procedures used to obtain eyewitness identification are "absolutely crucial"; they must be valid, reliable tests or else the answer may not be reliable and valid. Law enforcement officers "can actually suggest an identification to someone without them understanding you are suggesting it," so it is important to safeguard against this. In Dr. Shomers opinion, a so-called "six pack" photo display can lead to inaccurate identification because it invites "comparison shopping." Witnesses often assume the suspected perpetrator is among those pictured and may be predisposed to select the most familiar photo even if it does not depict the actual perpetrator. Also, if one photo stands out in some way from the others, and shows a person similar to the recollected perpetrator, it is often erroneously chosen. It is therefore essential that the person seeking an identification admonish the witness that the perpetrator may not be in the lineup, that it is as important to exonerate an innocent person as to implicate the guilty, and that it is not essential that the witness make an identification. Finally, Dr. Shomer opined that an in-court identification is little more than confirmation of an earlier identification. The best and fairest identification procedure is one that is "double blind," and "sequential;" that is, (1) the person seeking the identification does not know and therefore cannot even subliminally signal to the witness who, if anyone, to select; and (2) the photos are presented one at a time rather than as a group.
DISCUSSION
I.
Exclusion of Evidence that the U.S. Department of Justice Endorses
Double-Blind Sequential Photo Displays as More Reliable Than
the "Six-Pack" Display Employed Here is Not Reversible Error
During the course of his testimony, Dr. Shomer stated that his views on eyewitness identification, like those of other experts, were supported by an exceptionally large body of scientific research that was produced not just by individual scientists but also by governmental bodies, specifically including the United States Department of Justice (DOJ). He emphasized that there is "an enormous amount of unanimity agreement in this area, far more than almost any other area of psychology. There was one person who used to call himself the minority voice, and even hes now changed his opinion. So that this is not like six dentists say this and five dentists say that. This is a really unanimous and highly agreed upon body of research . . . ." Asked whether this body of research had been incorporated into new identification guidelines circulated by DOJ, Dr. Shomer answered "yes," noting that the recommendations DOJ gave law enforcement agencies regarding reliable and valid ways of obtaining eyewitness identification was based on the same body of research he relied upon. He also noted that this unanimous body of knowledge was incorporated into an eyewitness identification guide put out by DOJ in 1999 for use by law enforcement agencies. The guide was seen as "a set of best practices" for agencies interested in the "reliability and accuracy" of eyewitness identification. At that point, the district attorney objected to the relevance of this line of questioning. The court, agreeing with defense counsel that he was laying a foundation for Dr. Shomers opinion, overruled the objection.
Dr. Shomer then commenced considerable testimony, earlier summarized, regarding the many specific defects of a "six-pack" photo display and the far greater accuracy of the double-blind presentation to eyewitnesses of sequential photographs. Finally, after Dr. Shomer was asked whether "[there is] another method of showing a photographic lineup to victims besides a six-pack . . . that is approved by the Department of Justice," he indicated that there was and described the presentation of sequential photographs. The district attorney objected again on the ground of relevance. The court invited defense counsel to rephrase the question, because "[t]he way in which you asked it is inappropriate." Counsel then asked "[h]ave the guidelines—the guidelines of the U.S. Department of Justice that youve testified are generally accepted within the scientific community recommended a procedure that is more accurate than the six-pack array method?" The district attorney again objected, and the court again sustained the objection and again invited defense counsel to rephrase the question. Counsel found the effort unnecessary, stating, "Ill just move on."
Appellant now claims that "the jury was prevented from considering that DOJ explicitly endorsed a procedure that it had determined was more reliable and yielded more accurate identifications that the procedure used here." According to appellant, "the trial courts exclusion of that relevant evidence was error and violated Mr. Bryants right to present a complete defense." We are not persuaded.
To begin with, the trial court never indicated that Shomers testimony about the DOJ guidelines was inadmissible on relevancy grounds; for, if it had, it would not have invited counsel to rephrase the question. The courts request that counsel rephrase his question appears to us to be a suggestion that Dr. Shomer be asked whether his opinion regarding the invalidity and unreliability of eyewitness testimony based on "six-pack" photo presentations was based in any part on opinions of other experts reflected in the DOJ guidelines. The opinion of an expert witness may be based on matter "perceived by or personally known to the witness . . . whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion." (Evid. Code, § 801, subd. (b), italics added.) Nothing in the record suggests that trial court determined that the DOJ guidelines were not the type of matter an expert such as Dr. Shomer could rely upon in forming an opinion about the reliability of eyewitness evidence. Nor does the record suggest defense counsel believed otherwise. Counsel appears to have decided to "move on" to other matters simply because he felt he had satisfactorily made his point. Thus we cannot confidently say the trial court erred.
Furthermore, even indulging the assumption that counsels inquiry of his witness was improperly barred by the court, we would nevertheless be unable to reverse the judgment on that basis. Appellant concedes, as he must, that the erroneous exclusion of expert testimony is prejudicial only if it is probable that a defendant would have obtained a more favorable result had the error not occurred. (People v. Sanders (1995) 11 Cal.4th 475, 510.) Implicitly conceding there is no such probability here, appellant emphasizes that if the exclusion of evidence affects a defendants substantial constitutional rights prejudice must be deemed to exist unless the error is harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24; People v. Edwards (1993) 17 Cal.App.4th 1248, 1266); and the error here rises to that level because it deprived him of the right to present a complete defense. Appellants argument that he was denied a defense is manifestly untenable.
As indicated, Dr. Shomers lengthy testimony informed the jury of the numerous reasons eyewitness testimony is often unreliable, and that the way in which such evidence was elicited from Caron, Clarke, and Winn by Officer Towle increased the likelihood that their identifications of appellant were unreliable. Furthermore, Dr. Shomers uncontradicted statements that his views were based on a body of scientific research unanimously endorsed by experts in the field and government agencies, specifically including the DOJ, renders it difficult to think the jury was prevented by the court from learning of the DOJs belief that sequential presentation of photographs in a double-blind manner is more reliable than the "six-pack" presentations made in this case.
The three cases appellant relies upon in which the exclusion of evidence was found to have deprived a defendant of the right to present a defense all involve situations materially different from that in this case.
Holmes v. South Carolina (2006) 547 U.S. 319 was a death penalty case in which the defendant was barred from introducing any evidence of third party guilt by a South Carolina rule of evidence prohibiting the use of such evidence if the prosecution has introduced forensic evidence that, if believed, strongly supports a guilty verdict. The judgment was reversed on the basis of the principle that the right to present a defense is abridged by a rule of evidence that was arbitrary or disproportionate to the purposes the rule is designed to serve. The court reasoned that by evaluating the strength of only one partys evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt. No category of evidence was excluded in this case by any comparable rule of evidence or upon any other basis.
In Washington v. Texas (1967) 388 U.S. 14, the Supreme Court reversed a murder conviction, holding the defendant had been denied his Sixth Amendment right to have compulsory process for obtaining witnesses by Texas statutes providing that principals, accomplices, or accessories in the crime charged cannot be introduced as witnesses for each other, thus denying the defendant the right to produce witnesses who are physically and mentally capable of testifying to events they had personally observed and whose testimony would have been relevant and material to the defense. There was no comparable exclusion of witnesses in the present case.
In re Martin (1987) 44 Cal.3d 1 was a case in which the petitioner was convicted of second degree murder based primarily on the testimony of the man who did the actual killing, allegedly on the petitioners behalf. The petitioner sought a writ of habeas corpus on the ground, inter alia, of prosecutorial interference with his constitutional right to present the testimony of witnesses at trial. A referee appointed by the Supreme Court determined that the prosecution had interfered with this right and the Supreme Court adopted that determination. The court held the petitioner established prosecutorial misconduct by showing that the petitioners first witness was arrested outside the courtroom in the presence of a news reporter immediately after testifying, that other witnesses, who knew of the first witnesss arrest, were informed they would be arrested for any crimes disclosed by their testimony, and subsequently did not testify, and that one witness declined to testify based on his knowledge of those events. The court held that the petitioner showed a causal link between the misconduct of the prosecution and the refusal of witnesses to testify, and had demonstrated the materiality of the witnesses testimony under both federal and state standards. There was no such prosecutorial intimidation of witnesses in this case, nor is there any other relevant similarity to Martin.
The foregoing cases are pertinent, if at all, only to show the weakness of appellants claim that he was denied a defense.
Appellant maintains that the challenged exclusion of evidence was prejudicial for two reasons: "(1) the unique nature of eyewitness identification expert testimony, and (2) the prosecutors repeated and emphatic attacks on the basis of Dr. Shomers opinions." It is probably true that "the annals of criminal law are rife with instances of mistaken identification" (United States v. Wade (1967) 388 U.S. 218, 228), and that many of the factors that account for the problem are contrary to the intuitive beliefs of lay jurors (People v. McDonald (1984) 37 Cal.3d 351, 363-365). Nevertheless, no court has ever suggested that such evidence is therefore inadmissible. Moreover, the finders of fact in this case were adequately made aware that eyewitness testimony is frequently unreliable. Furthermore, even though the identification procedure employed may have in some respects fallen short of the ideal, the eyewitness testimony is not nearly as weak as appellant makes out. It was provided not by one, but by three witnesses. Caron and Clarke saw him not just at the scene of the assault, but also at the market, as did Winn, where the lighting was reasonably good. All three witnesses knew appellant as a resident of the neighborhood, and Winn was particularly familiar with him as a result of his prior conduct at the market, because his employer had called his attention to appellants frequent "panhandling" there. All three witnesses identified appellant from the photograph and at trial with a high degree of certainty, and their confidence was not shaken by cross-examination. Additionally, all three witnesses were shown the photographs within a week after the assault, when their memories were still fresh. Each witness was alone when she or he saw the photo display, the photographs shown were all of people with similar features to appellant, and there is no evidence any witness had been told about the progress of the police investigation or given any other information suggesting appellant was the perpetrator. Also, Carons identification was based in part on her recognition of appellants unusual voice. Thus, even aside from the impeachment of appellants testimony that he did not own a hooded sweatshirt at the time the crime was committed, the foregoing factors all support the eyewitness identification.
In addition to the manner of presentation, Officer Towle acknowledged that the photograph of appellant had a dark blue background, which the others did not have, and that the photograph of appellant was slightly smaller than the others.
As stated in Simmons v. United States, supra, 390 U.S. 377, "each case must be considered on its own facts, and . . . convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." (Id. at p. 384, citing People v. Evans (1952) 39 Cal.2d 242, 246.) The prosecutorial misconduct in In re Martin, supra, 44 Cal.3d 1, was found prejudicial (under both the federal and state standard) due to the closeness of the case (shown by the fact that the jury deliberated almost 22 hours over five days); the fact that that verdict "plainly turned" on whether or not the jury believed the testimony of the person who actually killed the victim; and because the testimony of the witnesses improperly induced by the prosecution not to testify would likely have had persuasive force. No such indications of prejudice are present in this case.
II.
The Prosecutors Closing Argument Did Not Deprive
Appellant of his Due Process Right to a Verdict Based
Solely on the Evidence Presented and the Relevant Law
Appellant maintains that, by warning jurors against certain adverse consequences of acquittal and attacking Dr. Shomers testimony in an inflammatory manner, the district attorneys closing argument essentially denied him a fair trial.
In passing, and apparently as makeweight factors, appellants opening brief also suggests two other defects in the district attorneys closing argument. First, that it impermissibly importuned the jury to assist law enforcement in fighting crime because the police were overworked, which relied upon a fact not in evidence. The statements in question consisted of the following remarks: "I want you to keep in mind that the officer arrived at the scene in 15 minutes, took his initial report, did his investigation, and he was probably off to another call. Busy guys," adding, "we had a lot more time and ability to examine things here which the officer didnt in the field. And I dont want you to hold that against the officer or the police just because thats not the time they have." These remarks, which were not objected to, were not in our view prejudicial. Appellant also suggests that the district attorney impermissibly vouched for the strength of the prosecutions case. We find no vouching, because in asserting the strength of the prosecutions evidence, which was also not objected to, the district attorney did not invoke his professional status or special expertise. (See People v. Huggins (2006) 38 Cal.4th 175, 206-207.)
A.
With respect to the consequences of acquittal, the district attorney stated to the jury as follows: "The impact of this case is great. The victims ability to feel safe in their own neighborhoods. If the defendant is acquitted in this case, . . . theres going to be a great impact on them. Theyre going to feel like you didnt believe them. Theyre going to . . . be scared. Theyre going to be worried." Later, at the close of his argument, the district attorney told jurors: "[T]ell Kristi Clarke that you believe them and April Caron, tell them you believe them. Tell them you will protect them. Send them that message. Find the defendant guilty as charged." The prosecutor also argued that acquittal would "empower the defendant and . . . give him license to steal and rob." He added that "[i]f the word out on the street is that you can get away with a crime, . . . its going to be a free-for-all."
Appellant maintains that asking jurors to convict so that the victims will feel safe, which improperly offers them an emotional reason to convict, prevented the jury from objectively determining guilt based on the evidence alone. The prosecutors statements were particularly prejudicial, appellant maintains, because the issue of his guilt did not turn on whether the victims thought they were telling the truth; the defense theory was not that the witnesses were lying, but simply that their good faith identification was mistaken. According to appellant, the prosecutors statements "eliminated" the possibility jurors would find that the identifications were mistaken and "forced the jury to choose between believing the victims and believing [the] defense witnesses—when in fact it was possible to believe both and still acquit [appellant]."
Respondent argues, first, that the statements complained of referred to matters that were in evidence and did not appeal to jurors sympathies or emotions. Respondent emphasizes that the jury heard evidence that after appellant physically assaulted Caron and Clarke he threatened that if they disclosed his attacks and thefts he would kill them, and jurors also knew appellant lived near both witnesses. Thus, according to respondent, the prosecutors statements that the two witnesses would not feel safe if appellant were acquitted was a logical inference from the evidence presented. Respondent also argues that even if the prosecutors statements were improper they were nevertheless harmless, because the jury would have known the victims would live in fear of appellant if he was acquitted and remained in the neighborhood even if the prosecutor had not pointed this out to them.
We question whether appellant can now properly raise the issue because he did not object at trial to any of the prosecutors remarks regarding the consequences of acquittal. Appellants claim that objection was not required in order to preserve the issue because "the number and prejudicial nature of the improper remarks" could not have been remedied by admonitions is clearly unjustified. As our Supreme Court has noted, " `[i]t is only in extreme cases that the court, when acting promptly and speaking clearly and directly on the subject, cannot, by instructing the jury to disregard such matters, correct the impropriety of the act of counsel and remove any effect his conduct or remarks would otherwise have. " (Horn v. Atchison, T. & S. F. Ry. Co. (1964) 61 Cal.2d 602, 610; People v. Fitzgerald (1972) 29 Cal.App.3d 296, 312.) The statements in question were clearly not so numerous or provocative that they can reasonably be deemed to have been judicially irremediable.
However, the prosecutors statements would not constitute reversible misconduct even if appellant had preserved the issue by objecting.
As the record makes abundantly clear, and the district attorney and defense counsel both heavily emphasized in their respective closing arguments, the transcendental issue in this case was the reliability of the witness identifications; all other issues were relatively insignificant. The district attorneys central effort was to persuade the jury of the validity and reliability of the eyewitness identifications and in that manner undermine appellants sole defense. Given the focus of counsel on this dominant issue, it is simply inconceivable that the verdict was materially influenced by the relatively few remarks of the prosecutor appellant belatedly focuses upon. The jury was instructed that it "must use only the evidence that was presented in this courtroom," that "[n]othing that the attorneys say is evidence" (CALCRIM No. 222), and that jurors should "not let bias, sympathy, prejudice, or public opinion influence your opinion" (CALCRIM No. 101). The record provides no reason to think the jury ignored that advice.
"A prosecutors conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. 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. Furthermore, . . . when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]" (People v. Morales (2001) 25 Cal.4th 34, 44, italics added.) No such likelihood exists in this case.
For this reason, we reject appellants claim that his counsels failure to object constitutes ineffective assistance of counsel warranting reversal of the judgment.
B.
Unlike the statements we have just discussed, the prosecutors statements regarding Dr. Shomer do relate to the central issue in this case. Acknowledging the significance of Dr. Shomers expert testimony, the district attorney spent a considerable part of his opening statement attacking his credibility. At the outset, counsel characterized Dr. Shomer as "a hired gun" self-interestedly fixed upon an extreme and unreasonable theory: "He makes 3 to 5 grand per case. Thats pretty good money. He always testifies for the defense. He makes $100,000 a year for his work on forensic cases like these. Wow. Thats great for him. [¶] He testifies about the same in every case. He testified that people are unaware of everything that influences them. He said thats true in all areas, not just this ID area. And what I would say is that hes pretty dedicated to the proposition that IDs are inaccurate. So isnt that a pretty big influence on him? Not only do you have the money factor, but you also have the fact that hes dedicated to this proposition. So youve got two things influencing him to sit up there and say why IDs arent accurate." In his responsive closing argument, defense counsel sought to rehabilitate Dr. Shomer by reminding the jury of his impressive experience and academic credentials, noting, among other things, that he had taught at Harvard and the district attorneys implication "that hes some kind of hack" was therefore unjustified.
In rebuttal, and using language appellant finds highly improper, the district attorney responded to counsels emphasis on Dr. Shomers Harvard affiliation as follows: "Lets talk about how Dr. Shomer taught at Harvard, he must know something, right. Well, Ted Kazinsky [sic] the unibomber, taught at Berkley [sic]. Berkeleys a pretty big institution. Good thing. It doesnt make him, you know, he—doesnt give him credibility in anyones mind. Dr. Shomer is what he is." At that point defense counsel objected on the ground that this was "an improper character or personal attack on somebody implying hes a criminal." The court overruled the objection, stating that the statements were merely "argument." The district attorney then continued by observing that "Im not implying that Dr. Shomer is a criminal. Not at all. Hes—well, you know, hes got his degrees. Im sure hes a fine teacher. But what Im saying is because he teaches at Harvard does not mean hes right, does not mean his research is reliable, does not mean that. Hes a smart guy. He can read stuff and make his conclusions. That doesnt mean hes right. It does not mean hes right."
Appellant argues that the prosecutors "gratuitous reference to Kaczinski, madman and killer, was inflammatory and interfered with the jurys objective determination of [appellants] guilt." According to appellant, "Ted Kaczinski calls to mind a lunatic so dedicated to his proposition—that technology and industry are evil—he was willing to kill people to promote it. Thus, by invoking Kaczinski, the prosecutor suggested not only that Dr. Shomers ideas were fringe, but also that Dr. Shomer himself was willing to go to any length to advance his agenda. In sum, the reference to Kaczinski had no relation to the evidence and its sole purpose and effect was to arouse the jurors emotional response and prevent the jury from fairly assessing Dr. Shomers credibility."
We are not persuaded by this argument. While the propriety, and indeed tactical wisdom, of the district attorneys dubious comparison of Dr. Shomer to Ted Kaczinski is questionable, and the trial court could properly have admonished the jury to disregard it, and perhaps should have done so, we cannot conclude that the district attorneys brief comments influenced the jury.
Prior to the commencement of closing arguments, the court had instructed the jury on the law. The instructions included CALCRIM No. 315, which stated that in evaluating identification testimony jurors should consider 14 specific questions, which are set forth in the margin below. The jury was also instructed (pursuant to CALCRIM No. 332) that it was "not required to accept [an expert witnesss testimony] as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the experts knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence."
The specific questions are: "Did the witness know or have contact with the defendant before the event? [¶] How well could the witness see the perpetrator? [¶] What were the circumstances affecting the witnesss ability to observe, such as lighting, weather conditions, obstructions, distance, and duration of observation? [¶] How closely was the witness paying attention? [¶] Was the witness under stress when he or she made the observation? [¶] Did the witness give a description and how does that description compare to the defendant? [¶] How much time passed between the event and the time when the witness identified the defendant? [¶] Was the witness asked to pick the perpetrator out of a group? [¶] Did the witness ever fail to identify the defendant? [¶] Did the witness ever change his or her mind about the identification? [¶] How certain was the witness when he or she made an identification? [¶] Are the witness and the defendant of different races? [¶] Were there any other circumstances affecting the witnessess ability to make an accurate identification? [¶] Was the witness able to identify the defendant in a photographic or physical lineup?" (CALCRIM No. 315.)
The remarks the district attorney made about Dr. Shomer before those to which defense counsel objected emphasized that the jury could, and should, reject Dr. Shomers testimony on the basis of "common sense," and this was entirely proper. After appellants counsel objected to the reference to Ted Kaczinski, the district attorney made clear that the factors Dr. Shomer identified were essentially the same as those described in the courts instructions (set forth, ante, in fn. 7) and rhetorically asked the jury "as you read through those factors, is there really any of those factors that [Dr. Shomer] gave you anything that you didnt already know?" The district attorney also emphasized that two of the factors Dr. Shomer thought important—"the fact that the two victims were familiar with the defendant and [made their identification] early and it was recorded"—favored the prosecution. The district attorneys concession that the factors Dr. Shomer relied upon were proper, and the district attorneys partial reliance on Dr. Shomers testimony, both significantly ameliorated any comparison of that witness with the mad bomber, which we think the jury must have considered hyperbole.
As our Supreme Court has observed, " ` "[t]he right of counsel to discuss the merits of a case, both as to the law and facts, is very wide, and he has the right to state fully his views as to what the evidence shows, and as to the conclusions to be fairly drawn therefrom. The adverse party cannot complain if the reasoning be faulty and the deductions illogical, as such matters are ultimately for the consideration of the jury." " (People v. Beivelman (1968) 70 Cal.2d 60, 76-77.) For this reason, appellate courts are reluctant to reverse convictions solely on the grounds of a misstatement in a closing argument. (See, e.g.,People v. Jones (1970) 7 Cal.App.3d 358 [reference to the defendant as having "animalistic tendencies" within the bounds of legitimate argument; and statement that sons of jurors and their friends dare not enter an area where the defendant was located was improper but did not require reversal]; United States v. Monaghan (D.C. Cir. 1984) 741 F.2d 1434, 1440, cert. denied, 470 U.S. 1085 (1985) [affirming conviction because improper remarks confined to closing argument, rather than part of cumulative evidence]; see also United States v. Modica (2d Cir. 1981) 663 F.2d 1173, 1181, cert. denied, 456 U.S. 989 (1982) [upholding conviction despite several improper remarks by prosecutor during summation].) Absent other compelling factors, a single misstatement confined to a closing argument rarely amounts to severe misconduct. The Supreme Court has approved this approach, holding that absent "`consistent and repeated misrepresentation " to influence a jury, "[i]solated passages of a prosecutors argument, billed in advance to the jury as a matter of opinion not of evidence, do not reach the same proportions." (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 646; accord, United States v. Young, 470 U.S. 1, 11-12 ["a criminal conviction is not to be lightly overturned on the basis of a prosecutors comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutors conduct affected the fairness of the trial." "Inappropriate prosecutorial comments, standing alone, would not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding"].)
Appellant relies on U.S. v. North (D.C.Cir. 1990) 910 F.2d 843 (superseded in part on rehg., 920 F.2d 940), but that case, like People v. Jones, supra, 7 Cal.App.3d 358, which appellant also relies upon, is entirely inconsistent with his argument. In North, the closing argument of the prosecuting attorney compared the conduct of the defendant, who was charged with involvement in illegal arms sales, with that of Hitler. The court found that although the prosecutors remarks were "clearly improper," it was not "sufficiently prejudicial to North as to warrant the reversal of any or all of his convictions". (U.S. v. North, at p. 894.)
U.S. v. Payne (6th Cir. 1993) 2 F.3d 706 exemplifies the type of improper closing argument that does require reversal. The defendant in that case was a postal carrier who interfered with the delivery of government checks to welfare recipients. The court found that the prosecutors lengthy and emotional references to the plight of poor children, to Chrismastime, and to the then-recent announcement by General Motors of a 75,000-person layoff of employees in his closing and rebuttal arguments were inflammatory and prejudicial. The court found "that the comments had the ability to mislead the jury as well as ignite strong sympathetic passions for the victims and against Payne. Occurrences like Christmas and major employee layoffs, because they affect or potentially affect such a broad scale of people, are going to invoke emotions which may cloud the jurys determination of Paynes guilt. [Citations.] In particular, the comment about GM probably would have tremendous emotional impact on a jury sitting in Michigan because GM employs so many Michigan residents. Furthermore, even though no children were called as witnesses or listed as victims, the prosecutor claimed that Payne took advantage of children. We find this statement somewhat misleading because there was no direct evidence Payne actually affected the welfare of any particular children." (Id. at p. 712.) The court also noted that the prosecutors remarks were not limited to his closing and rebuttal arguments. Throughout the trial, "the government used other opportunities to characterize Payne as a bad individual who would take advantage of poor, pregnant women, and helpless children. (Ibid.) "All the remarks were deliberate. They were part of a calculated effort used to evoke strong sympathetic emotions for Christmas-time activity, the poor, pregnant women, diaperless children and laid-off employees." (Id. at p. 714.) Finally, the strength of the proofs of guilt was debatable. "Evidence relating to the bribery counts was weak, as indicated by a not-guilty verdict on those counts. While there was some proof for the obstruction and desertion of mail counts, the proof was not overwhelming." (Ibid.) Clearly, none of the factors in Payne and like cases (see, e.g., United States v. Stahl (2d Cir. 1980) 616 F.2d 30 [prosecutor equated wealth with wrongdoing and appealed to potential bias of low-income jurors]; and U.S. v. Doe (D.C. Cir. 1990) 903 F.2d 16 [racially inflammatory summation]) are present in this case.
Appellant has not and cannot show that any of the components of substantial prejudice resulted from the prosecutors reference to Ted Kaczinski. Furthermore, given the evidence, it appears virtually certain the jury would have convicted appellant in the absence of that reference. The reference was at most marginal and, as indicated, was ameliorated by the prosecutors partial reliance on Dr. Shomers testimony.
For the foregoing reasons, appellants due process rights were not violated.
III.
Imposition of the Upper Term Did Not Violate the Principles
Set Forth in Apprendi v. New Jersey and its Progeny or
Otherwise Require Remand for Resentencing
The trial court imposed the upper term on one of the two robbery counts after finding "that the defendant has engaged in violent conduct which indicates a serious danger to society. His prior convictions are numerous and increasing in seriousness, and his prior performance on summary probation was unsatisfactory." The court found no mitigating factors.
A.
In Cunningham v. California (2007 549 U.S. __, 127 S. Ct. 856 (Cunningham), "the United States Supreme Court, disagreeing with [the California Supreme Courts] decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), held that Californias determinate sentencing law (DSL) violat[ed] a defendants federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution by assigning to the trial judge, rather than the jury, the authority to make the factual findings that subject a defendant to the possibility of an upper term sentence." (People v. Black (2007) 41 Cal.4th 799, 805 (Black II). The high court has recognized two exceptions to a defendants right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. (People v. Sandoval (2007) 41 Cal.4th 825, 836-837 (Sandoval).) "First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jurys verdict. (Blakely [v. Washington (2004)] 542 U.S. [296], 303 [(Blakely)].) Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. (Id. at p. 301; see Apprendi [v. New Jersey (2000)] 530 U.S. [466,] 490; Almendariz-Torres v. United States (1998) 523 U.S. 224, 239-244.)" (Sandoval, at pp. 836-837.)
On remand from the United States Supreme Court, the California Supreme Court concluded in Black II, supra, 41 Cal.4th 799, that the "defendant did not forfeit the issue by failing to object to his sentence on Sixth Amendment grounds in the trial court; . . . that imposition of an upper term sentence did not violate defendants right to a jury trial, because at least one aggravating circumstance was established by means that satisf[ied]Sixth Amendment requirements and thus made him eligible for the upper term; . . . [and] that neither Cunningham nor the relevant prior high court decisions apply to the imposition of consecutive terms." (Black, II, at pp. 805-806, italics added.)
As the court explained in Black II, "the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is `legally essential to the punishment (Blakely, supra, 542 U.S. at p. 313), that is, to `any fact that exposes a defendant to a greater potential sentence than is authorized by the jurys verdict alone (Cunningham, supra, 549 U.S. at p. __, 127 S.Ct. at p. 836)." (Black II, supra, 41 Cal.4th at p. 812; see Rita v. U.S. (2007) 551 U.S. ___, 127 S.Ct. 2456, 2466; accord, Sandoval, supra, 41 Cal.4th at pp. 838-839.) "`Accordingly, so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. (Black II, at p. 813.) By the same reasoning, if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless." (Sandoval, at p. 839)
In Sandoval, supra, 41 Cal.4th 825, the Supreme Court determined that none of the aggravating circumstances cited by the trial court came within exceptions set forth in Blakely, and therefore concluded that that the error was not harmless beyond a reasonable doubt and remand for resentencing was required. (Id. at p. 843.) Appellant maintains that is also the case here, because whether his prior convictions are "numerous and increasingly serious" and his "prior performance on summary probation was unsatisfactory" do not fall within the exception carved out by Almedariz-Torres v. United States, supra, 523 U.S. 224.
The difficulty for appellant is that, as he virtually concedes, Black II, supra, 41 Cal.4th at pages 819-820, which we must follow, holds that use of the two factors he objects to is constitutionally permissible. Appellant concedes as well that Black II also makes clear that a single valid aggravating factor is sufficient. Nonetheless, in order to "preserve his rights to federal review" of these issues, appellant contends that Black II is in these respects inconsistent with Apprendi v. New Jersey and its progeny. We do not know whether appellants challenge to Black II will succeed in federal court, but it cannot succeed here, as we are bound to follow the rulings of our Supreme Court. (Auto Equity Sales, Inc v. Superior Court (1962) 57 Cal.2d 450, 455.)
B.
Appellant also claims that three of the six prior convictions the trial court found to be numerous and of increasing seriousness included juvenile adjudications, and that the remaining priors were all misdemeanors. We address these issues in turn.
1.
Appellant claims that the use of prior juvenile adjudications is inconsistent with Blakely, supra, 542 U.S. at page 303, because Blakely states that the " `statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant," thereby implicitly excluding juvenile cases, which cannot be adjudicated by a jury. Appellant bases this contention on the Ninth Circuits opinion in U.S. v. Tighe (9th Cir. 2001) 266 F.3d 1187, 1194-1195, which though it has not been followed in some other circuits, remains federal law in this circuit.
See U.S. v. Burge (11th Cir. 2005) 407 F.3d 1183; U.S. v. Jones (3d Cir. 2003) 332 F.3d 688; U.S. v. Smalley (8th Cir. 2002) 294 F.3d 1030.
Tighe states in material part as follows: "To the extent the governments argument can be construed as a request to extend Apprendis `prior conviction exception to include prior nonjury juvenile adjudications on the basis of Almendarez-Torres logic, we decline to do so. . . . [¶]. . . [¶] In sum, we conclude Apprendis narrow `prior conviction exception is limited to prior convictions resulting from proceedings that afforded the procedural necessities of a jury trial and proof beyond a reasonable doubt. Thus, the `prior conviction exception does not include nonjury juvenile adjudications. Therefore, the district court violated Apprendi when, at sentencing, it increased Tighes penalty beyond the prescribed statutory maximum based on an adjudication which denied Tighe the right to a jury trial. See Apprendi, 530 U.S. at 489; Jones [v. United States (1999)], 526 U.S. [227, 243, fn. 6].)" (U.S. v. Tighe, supra, 266 F.3d at pp. 1194-1195, fn. omitted.) Although the decisions of a lower federal court interpreting federal law may be persuasive they are not binding on us. (People v. Williams (1997) 16 Cal.4th 153, 190; People v. Zapien (1993) 4 Cal.4th 929, 989.) California courts are divided on the persuasiveness of the Ninth Circuits reasoning in Tighe.
The division is exemplified by the conflicting opinions in two cases in which the California Supreme Court recently granted petitions for review, People v. Nguyen (2007) 152 Cal.App.4th 1205 and People v. Tu (2007) 154 Cal.App.4th 735. We find it unnecessary to choose between the conflicting views because there is an independent justification for the aggravated term imposed in this case.
2.
Appellant claims that the three adult priors the trial court relied upon to enhance his sentence were improperly relied upon because all of them were misdemeanors. The three priors at issue consist of convictions for spousal abuse, burglary, and fighting in a public place. Under the title "PRIOR RECORD," the probation report indicates that the prior convictions of spousal abuse (§ 273.5) and fighting in a public place (§ 647, subd. (f)), were for misdemeanors, but the burglary (§ 459) appellant was convicted of on September 30, 1999 was a felony offense. According to the probation report, the penalty imposed on appellant for that burglary was "32 days jail, [and] fine." At the sentencing hearing in the present case, in the course of arguing that the court should impose the midterm rather than the aggravated term sought by the district attorney, defense counsel noted in passing that although the probation report indicated that the 1999 burglary was a felony, the 32-day jail sentence "is not really consistent with the felony," and he (counsel) did not "recall that [it was a felony] from his RAP sheet." Defense counsel did not identify or offer the rap sheet he referred to into evidence or pursue this matter further, nor did the district attorney or the court. However, at the end of the hearing, while the court was considering appellants eligibility for probation, the court commented that appellant was ineligible because he "has two prior felony convictions." (See § 1203, subd. (e)(4).) Counsel thereupon corrected the court, stating that "I dont think he has two prior felonies." Counsel allowed that appellant was ineligible for probation unless the court found, as counsel urged, that this was an "unusual case" in which probation was called for "in the interests of justice" (§ 1203, subd. (e)), but on the different ground that he had a prior conviction for burglary, and such a person was ineligible for probation under section 1203, subd. (e)(1)). In other words, appellant did not at the sentencing hearing make much of the claim that appellants prior burglary was not a felony.
This colloquy is somewhat puzzling. The probation report indicated that not only was the 1999 burglary a felony, but so too were two of his three prior juvenile adjudications; i.e., the 1996 adjudication for "possession/purchase [of] cocaine base" (Health & Saf. Code, § 11351.5) and the 1995 adjudication for "possession of narcotics" (Health & Saf. Code, § 11350).
This is unsurprising. As the Attorney General points out, the fact that appellant was fined and sentenced to jail sheds little light on whether his offense was a misdemeanor or a felony, as convicted persons are often sentenced to jail as a condition of probation for the commission of a felony offense. Given the indication in the probation report that appellants conviction of burglary in 1999 was for a felony, the burden was on appellant to show otherwise, and the burden was not sustained by counsels inability to recall whether a "rap sheet" also showed that the burglary was a felony offense.
As earlier noted, Black II, supra, 41 Cal.4th 799, holds that imposition of an upper-term sentence is constitutionally permissible if at least one aggravating circumstance is established by means that satisfy Sixth Amendment requirements. (Id. at pp. 805-806.) Thus appellants prior adult convictions were "numerous" and made him eligible for the upper term imposed by the trial court. (See id. at p. 818.)
DISPOSITION
The judgment is affirmed.
We concur:
Lambden, J.
Richman, J.