Opinion
D058392 Super. Ct. No. FSB047782
11-15-2011
THE PEOPLE, Plaintiff and Respondent, v. MANUEL LOUIS CALVIN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Bernardino County, Annemarie G. Pace, Judge. Affirmed as modified, and remanded with instructions.
A jury convicted Manuel Louis Calvin of carjacking (Pen. Code, § 215, subd. (a)) and two counts of second degree robbery (§ 211). In bifurcated proceedings, the trial court found true prior conviction allegations under the three strikes law. The court sentenced Calvin to prison for an indeterminate term of 75 years to life, plus a consecutive determinate term of 10 years.
All statutory references are to the Penal Code.
The court declared a mistrial on count 3, and dismissed it under section 1385.
Calvin contends he was denied his state and federal constitutional rights to due process and a fair trial based on prejudicial prosecutorial misconduct. He further contends the abstract of judgment should be amended because the court miscalculated the court security fee amount under section 1465.8. We affirm the judgment as modified and remand with directions.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant does not challenge the sufficiency of the evidence to support his convictions and we therefore set forth the facts in a summary fashion. (People v. Miramontes (2010) 189 Cal.App.4th 1085, 1090.)
I. Prosecution Case
A. Count 1 : Robbery of Deborah Kamrani
On December 7, 2004, at approximately 3:20 a.m., Kamrani was walking towards a hospital emergency room entrance. Calvin was standing nearby, approached within two to three feet of Kamrani, and ordered her to "drop it." She threw her purse five to ten feet away from her, and Calvin ran away with it. She identified Calvin in a photo line up, and at trial identified a gray jacket Calvin had worn during the robbery.
B. Count 2 : Robbery of Rosemary White
On December 8, 2004, at approximately 3:40 a.m., White parked her car at her work at a medical center, and was walking to the center's entrance when Calvin told her, "don't open that door" and "don't turn around." She saw Calvin standing behind her with both hands in his pockets, and she put her purse on the floor. He asked for her car keys but she refused and screamed for help. Calvin took her purse and fled toward an apartment behind her office building. She called 911, and later identified Calvin in a photo lineup and at trial.
C. Count 4 : Carjacking of Mary Ramirez
On December 27, 2004, at approximately 11:41 a.m., Ramirez was walking to her car and Calvin asked her for change. She refused. Nonetheless, he followed her, held her car door open, and "stuck something into [her] rib cage, poked [her] with something; and he said 'don't say anything. Get out of the car and give me your purse.' " She was scared, complied, and left her keys in the ignition. Calvin took off in her car. Ramirez identified Calvin in a photo lineup and at trial.
Police found Ramirez's car with a duffle bag in it. Calvin's friend, Tracy Davis, identified the duffel bag, a wallet, and a gray jacket and other clothes as Calvin's property. A forensic specialist with the San Bernardino Police Department lifted Calvin's finger prints off Ramirez's car door.
II. Defense Case
Calvin testified at trial and denied robbing any of the women, although he admitted that the medical center where White worked was across from his apartment. He also admitted he had panhandled and washed cars in the area where Ramirez was robbed, and his fingerprints could have gotten on Ramirez's car if he had washed it, although he did not specifically recall washing it. He admitted the duffle bag and wallet were his, but denied his clothes were inside the bag. He testified he always wears glasses and was required to take them off for his lineup photograph.
III. Closing Arguments
Defense counsel emphasized eyewitness misidentification, arguing that the prosecutor had urged the jury to focus on the one commonality in the witnesses' testimony — that Calvin was an African-American male — and ignore the witnesses' differing descriptions of the robber's age, height, weight and so on. Specifically, defense counsel noted regarding Ramirez's in-court identification: "Very diligent on her part to look at everybody, but what was the one thing that Mr. Calvin was that no one else was in this room and that's an African American. Why would you need to thoroughly search the courtroom if she was so sure who the suspect is?" Defense counsel concluded that in the witnesses' minds, "Mr. Calvin became the man that did this to them. Not that he's the man that did it to [them]. He became that person. . . . It changed in their mind as they took [a] piece of information and graft[ed] it on there, a photograph that they see in a lineup, the person they see in the courtroom. . . . [¶] They are doing the best they can. Unfortunately, the best they can comes down to identifying a man that fits a general description, but [Calvin] did not do this."
During rebuttal, the prosecutor countered: "For you to find the defendant innocent, you have to throw out three photo IDs and four victim IDs in court. As we heard, those four victim IDs also occurred on other occasions. Don't you think if they would have failed to ID in prior hearings, defense counsel would have pointed your attention to instruction [No.] 226?" (Emphasis added.) At that point, defense counsel objected on grounds the prosecutor misstated the evidence, but the court overruled the objection.
The jury was instructed with CALCRIM No. 226, which includes a list of factors to consider when evaluating the truth or accuracy of the witnesses' testimony including previous consistent or inconsistent statements and the witnesses' behavior while testifying.
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The prosecutor continued: "Drawing your attention to a prior ID, isn't that what [defense counsel] talked about with Ms. [Kamrani], she failed to ID in that photo lineup? But the law says that he can point that out to you and he should because it's something to consider. But the other three victims identified every time. And I guess shame on Ms. Ramirez for being careful. Shame on her. Shame on her for making sure she checks the entire [court]room. Shame on her for making sure that she has the man who robbed her, that she identifies the right person."
DISCUSSION
I.
Calvin contends the prosecutor committed misconduct by misstating the facts presented in evidence and impermissibly shifted the burden of proof to appellant to prove his innocence.
A. Forfeiture
Generally, a defendant cannot raise a prosecutorial misconduct claim on appeal unless he first makes an assignment of misconduct at trial, stating the grounds, and on that basis, requests the jury be admonished to disregard the impropriety. (People v. Samayoa (1997) 15 Cal.4th 795, 841 (Samayoa).) Here, Calvin did not properly object on the grounds of prosecutorial misconduct nor did he request admonition, and his objection on different grounds does not avoid forfeiture of his contention on appeal. In any event, we address his contentions on the merits and conclude no misconduct occurred.
B. Applicable Law
" ' " '[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.' " ' " (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill).) " '[C]ounsel may not [however,] assume or state facts not in evidence [citation] or mischaracterize the evidence.' [Citation.] 'Whether the inferences the prosecutor draws are reasonable is for the jury to decide.' " (People v. Harrison (2005) 35 Cal.4th 208, 249 (Harrison).) "The prosecutor is permitted to urge, in colorful terms, that defense witnesses are not entitled to credence, to comment on failure to produce logical evidence, [and] to argue on the basis of inference from the evidence that a defense is fabricated . . . ." (People v. Pinholster (1992) 1 Cal.4th 865, 948.)
A prosecutor's intemperate behavior violates the federal constitution when it comprises a pattern of conduct so egregious that it infects the entire trial with such unfairness as to make the conviction a denial of due process. (Samayoa, supra, 15 Cal.4th at p. 841.) "A defendant's conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct." (People v. Crew (2003) 31 Cal.4th 822, 839.)
" 'Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involvesthe use of deceptive or reprehensible methods to attempts to persuade either the court or the jury. (Hill, supra, 17 Cal.4th at p. 819.) "[W]hen misconduct has been established, it 'must bear a reasonable possibility of influencing the penalty verdict. [Citation.] In evaluating a claim of prejudicial misconduct based upon a prosecutor's comments to the jury, we decide whether there is a reasonable possibility that the jury construed or applied the prosecutor's comments in an objectionable manner.' " (People v. Valdez (2004) 32 Cal.4th 73, 132-133.)
C. The Prosecutor did not Misstate the Facts Presented in Evidence
Calvin contends the prosecutor committed misconduct by misstating the facts. He also contends, "Contrary to respondent's analysis, the prosecutor's comments regarding defense counsel's failure to point out the inconsistencies in the identification factors set forth in CALCRIM No. 226 were clearly improper because counsel did point out the inconsistencies in his closing argument to the jury."
The court instructed the jury with CALCRIM No. 222: "nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence." By providing the jury with this instruction, "[a]ny harm flowing from the alleged misconduct was thereby cured." (People v. Szeto (1981) 29 Cal.3d 20, 34.)
The defense focused on eyewitness misidentification and counsel argued in closing argument that Calvin had not committed the crimes but over the course of several years he became the "correct person" in each victim's mind. Defense counsel further suggested that because Calvin was the only Black man in the court room, the victims' in-court identifications were flawed. The prosecutor responded to the defense counsel's attacks on the eyewitness identifications, pointing out that the four victims identified Calvin in the lineup and at trial. The prosecutor asked rhetorically why the defense did not point to any other misidentification by the witnesses, such as at a preliminary hearing. We conclude the prosecutor drew a logical inference from defense counsel's closing argument and a reasonable jury could have easily accepted or rejected that inference.
Even if the prosecutor misstated the evidence as Calvin claims, any error was harmless beyond a reasonable doubt. As the jury was instructed, it was for them to decide what the evidence was, and therefore whether, in fact, the prosecutor had misstated it. Because, as Calvin correctly claims, he had challenged the witness's identifications and credibility during closing arguments, the prosecutor's contrary statement would not alter that fact, and the jury would not have relied on the prosecutor's arguments because the jury instruction had told them it was not evidence.
D. The Prosecutor did not Impermissibly Shift the Burden of Proof to Appellant
Calvin alleges the prosecutor's argument impermissibly shifted the burden of proof to him to impeach the witness identifications. First, we note that Calvin presents no law on point to support that theory. He relies on Sandstrom v. Montana (1979) 442 U.S. 510, 524, which states that a jury instruction may not invade the presumption of innocence, but says nothing on the subject of shifting the burden of proof in relation to prosecutorial misconduct. While a jury instruction may be similar to a closing argument, in that they both guide the jury into making their decision, a jury instruction is designed to outline the law in a manner to help the jury reach the correct decision.
Calvin relies on People v. Varona (1983) 143 Cal.App.3d 566, in which the court stated that "in a proper case" the prosecutor may argue that the defendant did not bring forth evidence to corroborate his story, an essential part of the defense case. (Id. at p. 570.) The Varona court concluded the prosecutor committed misconduct because although the defense tried to enter into evidence corroborating evidence, the prosecutor objected, but later used the lack of corroboration in closing argument. (Ibid.) But the prosecutor here did no such thing. We conclude that under no theory was the prosecutor's statements misconduct and, in any event, CALCRIM No. 222 instructed the jury not to consider as evidence questions asked by the prosecutor or statements made during closing arguments.
II.
Calvin correctly points out he was convicted by jury and not by court as the abstract of judgment indicates. The abstract should be amended accordingly.
Calvin further contends the abstract of judgment erroneously includes a $180 court security fee per count. At sentencing, the court imposed a $180 security fee, but at that time section 1465.8 imposed a $30 court security fee per conviction. (§ 1465.8, subd. (a)(1).) Accordingly, we agree the trial court should have imposed a total security fee of $90.
DISPOSITION
The judgment is modified to reflect imposition of $90 for court security fees under Penal Code section 1465.8, and the fact Manuel Calvin was convicted by jury, and as so modified, it is affirmed. The trial court is directed to correct the abstract of judgment accordingly, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
O'ROURKE, J.
WE CONCUR:
NARES, Acting P. J.
AARON, J.