Opinion
H029707
5-31-2007
THE PEOPLE, Plaintiff and Respondent, v. LEONARD DOUGLAS BYRD, Defendant and Appellant.
NOT TO BE PUBLISHED
A jury convicted defendant of assault with intent to commit rape or penetration with a foreign object (Pen. Code, § 220) and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). The crimes occurred on March 12, 2004. The trial court sentenced defendant, a habitual sexual offender, to two terms of 40 years to life in state prison, staying one of the terms under section 654 and striking enhancements to both terms under section 1385. The court also stayed a serious felony enhancement.
All statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant claims that the prosecutor committed prejudicial misconduct during closing argument and that the trial court abused its discretion in permitting the prosecution to introduce evidence of a prior conviction.
We find no such infirmities in defendants trial and will affirm the judgment.
FACTS
The prosecutions case was based on victim eyewitness identification and deoxyribonucleic acid (DNA) evidence linking defendant to the crimes.
I. Prosecution Evidence Regarding the Charged Crimes
The victim, Donna B., testified that she was operating a store in Santa Clara when defendant appeared about 3:00 p.m. on March 12, 2004, and asked to buy an art object for his mother, who he said had recently been discharged from a hospital. Donna B. escorted him to a back area of the premises and he clubbed her on the temple with a hard object. He grabbed her by the neck from behind and simultaneously choked and shoved her. The two struggled and defendant held her to the floor with the weight of his body. Eventually, defendants choking of her caused her to lose consciousness. When she regained consciousness, defendant was gone. Her pants had been pulled down to her ankles and some of her blouses buttons were undone.
An underwear tag recovered from the crime scene contained DNA evidence that Elizabeth Skinner, a Santa Clara County crime laboratory criminalist, identified as belonging to defendant. Donna B. testified that the premises were kept clean and that no loose underwear tag would have been present before defendant arrived. Other items containing DNA were recovered, but all were inconclusive with regard to defendant, neither excluding nor necessarily including him as the sample donor.
Donna B. identified defendant as her assailant at trial, after having failed to do so in a sequential photographic lineup conducted four months after the attack. After viewing the photographs, Donna B. told a police officer, " `I dont think hes here. " At trial, however, she testified that one of the pictures she saw during the lineup had borne a similarity to defendants likeness. She also testified that she was "very certain" of her in-court identification of defendant.
The record does not show that the sequential photographic lineup included defendant. The People acknowledge, however, that it did.
Immediately following the attack, Donna B. told various witnesses that the assailant was a well-dressed, well-groomed, soft-spoken African-American who spoke good English. She told a police officer that her assailant was about 27 years old, five feet nine inches tall, 140 pounds in weight, and of medium build. He did not look or smell as she believed a homeless person would. She repeated aspects of her description at trial.
A branch manager of a day-laborer agency for which defendant worked as a contract worker testified that he knew defendant to be homeless. Nevertheless, defendant was fairly clean, though not as clean as the manager would keep himself. Agency records showed that defendant had worked at the Humane Society down the street from Donna B.s store until March 5, 2004, a week before the attack. On the day of the crimes, the records showed that defendant was working for two other agency clients. For one, defendant did nighttime work and would not have been on duty when Donna B. was attacked. The jury received no evidence about the duty hours for defendants other assignment.
Donna B. suffered severe and lasting injuries as a result of defendants attack. Some of her symptoms were persisting at the time of trial.
II. Prosecution Evidence Regarding Defendants Prior Sexual Assaults
The jury heard evidence of four prior sexual assaults by defendant. The victims in three of them testified at defendants trial for the crimes charged in this case.
In 1979, when defendant was 12 or 13 years old, he attacked 17-year-old Dorothy T. as she was returning home from a convenience store. He engaged her in conversation, tackled her, climbed on top of her, and, in a secluded area, ripped open her pants zipper and attempted a sexual battery. Dorothy T. managed to fight him off. She identified defendant in court.
In 1980, defendant attacked Carla M., a meter-reader. Defendant engaged her in conversation and followed her into a convenience store. She left the store and went to a secluded area behind it to read a bank of meters. Defendant grabbed Carla M. by her throat, pulling her onto the ground, and tried to immobilize her. Defendant put his hand in her mouth and she bit it. He ripped Carla M.s shirt and touched her breast, stomach, and pants. He tried to but could not remove her pants. Eventually two men arrived in a Chevrolet El Camino as she was fighting him and he fled with the men in pursuit. The two men captured him and they and the store owner restrained him. Defendant threatened to kill her if she did not hang up the phone from which she had just called the police. The police arrived immediately afterward. Carla M. identified defendant in court.
In 1985, defendant, then 17 years old, was living in a school dormitory near Stockton. (The record reveals that defendant was in the custody of the California Youth Authority. It does not appear that the jury heard this information.) He attacked Graciela M., a school worker. As the two were returning from a dumpster, defendant set aside his garbage can, grabbed Graciela M. from behind, and dragged her about 20 to 25 feet to a secluded area. He put his hands over her mouth and banged her head on the ground to try to stop her from screaming. Holding her to the ground with his body weight, he ripped open her blouse and fondled her breasts and buttocks. Even after rescuers responded, defendant continued to assault Graciela M.; "[t]hey literally had to pry him off me." Graciela M. identified defendant in court.
With regard to defendants fourth sexual assault, a deputy district attorney testified that in 1990 or 1991, he prosecuted defendant for forcible vaginal penetration of Shannon S. with a foreign object. An abstract of judgment admitted into evidence showed that defendant pleaded guilty to the crime.
III. Defense Evidence
The defense presented evidence via a stipulation that the police did not recover any fingerprints matching defendants from the crime scene.
DISCUSSION
I. Prosecutorial Misconduct
Defendant claims that his rights under the Fifth, Sixth, and Fourteenth Amendments to the federal Constitution, as well as those conferred by state law, were violated by improper remarks the prosecutor made during closing argument. We disagree.
A. Day-labor Agency Managers Testimony
As noted, a branch manager of a day-laborer agency for which defendant worked testified that he knew defendant to be homeless. During closing argument, the prosecutor said he should have objected to the testimony because it left open the question how the manager knew of defendants homelessness. The prosecutor argued that the manager would not have been aware of the details of defendants life, given that defendant was one among many people whom the agency would dispatch to worksites.
Defendant asserts that the prosecutor improperly referred to facts not in evidence by implying, contrary to the managers testimony, that the manager might not know that defendant was homeless.
Defendant did not object to these remarks and has forfeited his claim on appeal. (E.g., People v. Ayala (2000) 23 Cal.4th 225, 284.) " `As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant [objected] and requested that the jury be admonished to disregard the impropriety. " (People v. Prieto (2003) 30 Cal.4th 226, 259.)
In an abundance of caution, we will address the merits of defendants claim, even though counsel did not object in a timely manner at trial.
Under federal law, " `[i]mproper remarks by a prosecutor can " `so infect [] the trial with unfairness as to make the resulting conviction a denial of due process. " " (People v. Carter (2005) 36 Cal.4th 1114, 1204.) Under state law, "a prosecutor who uses deceptive or reprehensible methods to persuade either the court or the jury has committed misconduct, even if such action does not render the trial fundamentally unfair." (Ibid.)
Prosecutors have wide latitude to discuss and draw inferences from the evidence and information duly presented at trial. "`Whether the inferences the prosecutor draws are reasonable is for the jury to decide. " (People v. Wilson (2005) 36 Cal.4th 309, 337.) This latitude is not unbounded, however. When the defendants claim on appeal focuses on 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 those remarks in an objectionable fashion. (People v. Ayala, supra, 23 Cal.4th at p. 284.)
Counsel may argue to a jury that a witness could not know a particular fact. (People v. Avena (1996) 13 Cal.4th 394, 421.) Contrary to defendants argument that the way in which the prosecutor did so here was improper, the prosecutor drew inferences of an acceptable type (People v. Young (2005) 34 Cal.4th 1149, 1197 ["Counsel may argue facts not in evidence that are common knowledge or drawn from common experiences"]) from facts that were in evidence. Ultimately, the prosecutor offered a series of inferences, based on common knowledge or experience, to the jury from the evidence presented that the manager of a bustling labor-for-hire agency (the witness had testified that the work was "hectic"; at the time of the crimes against Donna B. the witness was usually working from 5:15 a.m. to 7:00 p.m. five days a week) would be poorly positioned to know the details of the personal life of the agencys contract laborers. It was for the jury to decide whether these inferences were reasonable, and there is no reasonable likelihood that the jury acted on the prosecutors remarks in an objectionable fashion.
Defendant also asserts that the prosecutor mischaracterized the managers testimony by arguing that the manager supervised a number of workers when in fact the manager testified that the agency had only a handful of employees. On this record, however, we perceive that the witness may have been referring to the office staff who administered the agency, and not the agencys contract laborers.
Defendant also asserts that the prosecutor improperly bolstered his case by arguing that the trial court would have sustained an objection to the managers testimony if only the prosecutor had thought to make one. We do not read the prosecutors argument similarly. In fact, the prosecutor only argued, and in passing at that, that defense counsel had laid "no foundation" for the question and that he, the prosecutor, should have been more on his toes and objected.
B. DNA Experts Testimony
As noted, the prosecutions DNA expert testified that aside from DNA taken from the back of an underwear tag, which belonged to defendant, the DNA evidence taken in the forensic investigation following the attack on Donna B. was inconclusive—defendant could not be excluded as a donor of the DNA found on those sites, but he could not necessarily be identified as one either. At closing argument, after the prosecutor argued that the DNA evidence showed irrefutably that the underwear tag belonged to defendant, he proceeded to argue that if the underwear tag wasnt enough evidence, the jury could "feel more comfortable" about finding defendant guilty by considering other DNA samples that, the prosecutor argued, contained DNA alleles "consistent" with defendants DNA, so that defendant could not be excluded as the donor of the DNA and in fact was.
Defense counsel objected at the outset of the prosecutors allegation that other DNA samples showed a degree of consistency with defendants DNA. Counsel objected on the ground that the prosecutors argument misstated the testimony. The trial court overruled the objection on the ground that the court did not perceive the prosecutor to be arguing that the DNA expert "actually said that that was the conclusion to draw."
The samples that the prosecutor referred to as containing consistent DNA alleles were, as explained, the samples that, according to the DNA experts testimony, had yielded inconclusive results, neither excluding nor necessarily identifying defendant as the contributor of the DNA.
Defendant asserts that the prosecutors remarks mischaracterized the DNA experts testimony, argued facts not in evidence, and invited an improper degree of speculation by the jury.
The People argue that because defense counsel failed to make repeated objections whenever the prosecutor referred to consistencies in various DNA samples, defendant has forfeited any claim of prosecutorial misconduct except for the instance in which he objected. We disagree. The trial courts ruling made clear that the prosecutor could pursue his line of argument, and continual objecting as the prosecutor proceeded to pursue it would have been futile and might have irritated the court and the jury. Defendant has fully preserved his claim for review. (See People v. Chatman (2006) 38 Cal.4th 344, 380.)
On the merits, however, we find no prosecutorial misconduct. The essence of the prosecutors argument was an elaboration of the witnesss testimony that defendant could not be excluded as a donor of the inconclusive DNA samples. Defendant maintains that "for all we know on this record 180 billion people could have contributed those minor alleles and, therefore, not been `excluded as the source, just as [defendant] was not excluded as the source." In essence, defendant is contending that in a highly technical area of forensic science with which the jury would not be familiar, the prosecutor was subtly reshaping the DNA experts testimony to make the testimony sound more damning than it was. But the prosecutor did no more than to argue that nothing in the inconclusive DNA evidence definitively excluded defendant as the perpetrator. That accurately characterized the expert witnesss testimony.
Moreover, the jury heard testimony that mirrors defendants contention. At one point defense counsel asked the prosecutions expert witness: "How many other members of the population could be included as possible minor contributors to the right fingernail scrapings of [the victim]?" and the witness replied: "I dont know that answer." Counsel then suggested that "it isnt a very discriminating number?" and the witness agreed. We presume that the jurors were paying attention to the testimony and would give the prosecutors argument no more weight than it deserved given that testimony.
C. Conclusion
In no instance did the prosecutor commit misconduct. We reject defendants claim of prosecutorial misconduct in its entirety.
III. Ineffective Assistance of Counsel
Defendant claims that he received ineffective assistance of counsel if we conclude that he forfeited his claim on appeal concerning the prosecutors remarks about the day-labor agency managers testimony because his counsel failed to object to the remarks.
A claim of ineffective assistance of counsel in violation of the Sixth Amendment entails deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an adverse effect on the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.) The Strickland standards also apply to defendants claim under article I, section 15 of the California Constitution. (E.g., People v. Waidla (2000) 22 Cal.4th 690, 718.)
Insofar as the prosecutors remark expressing skepticism about the reliability of the managers testimony did not constitute misconduct, defendants claim is groundless. "Representation does not become deficient for failing to make meritless objections. There was no [prosecutorial] misconduct, so no reason to object to the questions." (People v. Ochoa (1998) 19 Cal.4th 353, 463.) Defendants ineffective assistance of counsel claim is without merit with regard to this point.
As for the prosecutors suggestion that defense counsel had laid no foundation for a question and that the prosecutor should have objected: " `[I]f the record does not preclude a satisfactory explanation for counsels actions, we will not, on appeal, find that trial counsel acted deficiently. " (People v. Ledesma (2006) 39 Cal.4th 641, 747.) For all we can discern on this record, counsel may have felt that the prosecutor was correct, or that to object to a fleeting and self-critical reference might have distracted the jury from more central issues, such as the reliability of Donna B.s identification of defendant as the assailant. Accordingly, defendants ineffective assistance of counsel claim fails on this point as well.
IV. Documentary Evidence of Propensity to Commit Sexual Assaults
Defendant claims that the trial court erred in ruling, over his objection, that documentary evidence of his prior conviction for a sexual assault was admissible as propensity evidence under Evidence Code section 1108. He further claims a violation of his federal due process rights under Hicks v. Oklahoma (1980) 447 U.S. 343.
Defendant observes that we recently rejected his state law claim in People v. Wesson (2006) 138 Cal.App.4th 959. He is correct. (Id. at pp. 967-969.) He urges us to reconsider our decision, but offers no persuasive reason to do so. Defendant would have us view this case in a different light from Wesson because in Wesson we commented that a criminal defendant who fears that introducing only documentary evidence of the prior crime will portray him in a false light can subpoena the prior victim to testify on the defendants behalf. (Id. at p. 969.) The prosecution here informed the court that it could not locate Shannon S., and defendant argues he should not have been expected to find her if the prosecution could not. But the prosecution in Wesson also told the court that it could not locate the prior victim. (Id. at p. 965.) Defendants attempt to distinguish Wesson from this case does not succeed.
Defendant presents his due process claim as an additional legal consequence of the superior courts purportedly erroneous ruling. In such a case, "rejection on the merits of a claim that the . . . court erred on the issue actually before that court necessarily leads to rejection of the newly applied constitutional `gloss as well. No separate constitutional discussion is required in such cases, and we therefore provide none." (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 990, fn. 5.)
V. Fundamental Fairness of Trial
Defendant claims that the cumulative effect of the errors and constitutional violations that occurred at his trial deprived him of a fundamentally fair trial, in violation of his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution.
As we have explained, no error or constitutional violation occurred. Accordingly, we reject defendants claim that his trial was unfair.
VI. Advisement of Second Strike Liability
Defendant contends he was not informed of the penal (specifically, second strike) consequences of his admissions and waiver of the right to trial by jury or to the court that he had committed prior offenses, and therefore his waivers were not intelligent and voluntary. He claims error under state law and, as an additional legal consequence, a violation of his federal due process rights under Hicks v. Oklahoma, supra, 447 U.S. 343, and Walker v. Deeds (9th Cir. 1995) 50 F.3d 670 (see id. at p. 673 ["when a state has provided a specific method for determining whether a certain sentence shall be imposed, ` "it is not correct to say that the defendants interest" in having that method adhered to "is merely a matter of state procedural law." "]).
The information alleged that defendant was liable for enhanced sentencing under the three strikes law by reason of his prior conviction for the crime against Shannon S. When time came to prove that defendant had suffered it and other prior convictions, defendant waived his various constitutionally protected trial rights (see Boykin v. Alabama (1969) 395 U.S. 238, 242-243; In re Tahl (1969) 1 Cal.3d 122, 132-133) and admitted he had been convicted as the trial court recited. The court did not advise defendant, however, that one consequence of his admissions was that he would be sentenced as a second strike offender to an enhanced prison term.
As we have noted, when a defendant claims a constitutional violation as an additional legal consequence of an error under state law, "rejection on the merits of a claim that the . . . court erred on the issue actually before that court necessarily leads to rejection of the newly applied constitutional `gloss as well. No separate constitutional discussion is required in such cases, and we therefore provide none." (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 990, fn. 5.)
Turning to state law, the rule is that "if the transcript does not reveal complete advisements and waivers, the reviewing court must examine the record of `the entire proceeding to assess whether the defendants admission of the prior conviction was intelligent and voluntary in light of the totality of circumstances." (People v. Mosby (2004) 33 Cal.4th 353, 361.)
We will assume for purposes of argument that the advisements given to and waivers taken from defendant were incomplete insofar as defendant was not told of the possible penal consequence of his admissions. Reviewing the entire record, we conclude under the totality of the circumstances defendants waiver was intelligent and voluntary with regard to the consequence that he would be sentenced as a second strike offender. The information alerted him and counsel to that consequence, and he has not called our attention to any place in the record that would show he did not understand the informations language or that counsel failed to explain the language to him if he did not understand it. Rather, the contrary appears. After the trial court informed defendant of his Boykin-Tahl rights, it asked: "Do either counsel have any further questions for the defendant?" At that point defense counsel could have asked defendant about the penal consequences of his admissions, but instead she replied "No." To make sure, the court asked of defense counsel, "are you satisfied that your client understands each of his rights and that hes in a proper state of mind to intelligently decide to waive those rights so he can admit the priors this afternoon?" Defense counsel replied: "Thats correct." We conclude that under the totality of the circumstances, the record shows that defendants waiver was intelligent and knowing in all respects.
In any event, there was no prejudice.
"Unlike the admonition of constitutional rights, . . . advisement as to the consequences of a plea is not constitutionally mandated. Rather, the rule compelling such advisement is `a judicially declared rule of criminal procedure. " People v. Walker (1991) 54 Cal.3d 1013, 1022.) One consequence of the nonconstitutional nature of the guaranty is that " `an uninformed waiver based on the failure of the court to advise an accused of the [direct] consequences of an admission constitutes error which requires that the admission be set aside only if the error is prejudicial to the accused. [Citation.] `A showing of prejudice requires the [defendant] to demonstrate that it is reasonably probable he would not have entered his plea "—or, in this case, defendants admission of the prior "strike" conviction—" `if he had been told about the fine "—or, in this case, the second strike sentence. (Id. at pp. 1022-1023.) Defendant has not cited anything in this record showing a reasonable probability that he would not have admitted the prior convictions if he had been properly advised of the consequences. (See People v. McClellan (1993) 6 Cal.4th 367, 378.)
In sum, the record shows that under the totality of the circumstances defendant admitted his prior convictions intelligently and voluntarily. And even if the courts advisements to him were incomplete, defendant does not show a reasonable probability that he would not have admitted the conviction for assaulting Shannon S. if the court had explained the admissions effect on his prison sentence. Accordingly, defendant is not entitled to relief.
DISPOSITION
Defendant has also filed a separate petition for a writ of habeas corpus, which we ordered considered with this appeal. We have disposed of the petition by separate order filed this day. (See Cal. Rules of Court, rule 8.264(b)(4).)
We concur:
Bamattre-Manoukian, Acting P. J.
McAdams, J.