Opinion
E031343.
11-7-2003
THE PEOPLE, Plaintiff and Respondent, v. JESSE DAVID DOUGLAS et al., Defendants and Appellants.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Travis George Miskam. Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant Jesse David Douglas. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Raquel M. Gonzalez, Supervising Deputy Attorney General, and John T. Swan, Deputy Attorney General, for Plaintiff and Respondent.
Defendants Jesse David Douglas and Travis George Miskam (defendants) were charged with conspiracy to commit murder (count 1)[] and attempted murder (count 2).[] Each count included the following enhancement allegations: (1) personal use of a deadly weapon (a knife as to Douglas and a glass bottle as to Miskam),[] (2) personal infliction of great bodily injury,[] (3) commission of a crime for the benefit of a criminal street gang,[] and (4) commission of a hate crime.[]
Penal Code sections 182 and 187. Unless otherwise noted, all statutory references are to the Penal Code.
Sections 664 and 187.
Section 12022, subdivision (b).
Section 12022.7, subdivision (a).
Section 186.22, subdivision (b)(1).
Section 422.75, subdivision (c).
Following a jury trial, defendants were both convicted, as to counts 1 and 2, to the lesser included offenses of conspiracy to commit assault with a deadly weapon or by force likely to cause great bodily injury[] and conspiracy to commit simple assault.[] The jury did not find true the allegation Douglas personally used a deadly weapon. As regards both defendants, the jury found true all of the remaining allegations. The trial court also found true allegations Miskam had a prison prior and prior serious felony conviction (strike prior) for assault with a deadly weapon or force likely to cause great bodily injury.[]
Sections 182 and 245, subdivision (a)(1).
Sections 182 and 240.
Section 245, subdivision (a)(1).
The trial court sentenced Miskam to a total term of 20 years in state prison, and sentenced Douglas to a total prison term of 14 years.
Defendants contend there was insufficient evidence supporting the gang enhancement and the prosecutor committed misconduct during closing argument. Miskam also complains that there was insufficient evidence to sustain the true finding on his strike prior and the trial court improperly imposed upper terms for the count 2 conviction and gang and hate crime enhancements. We conclude there was no reversible error and affirm the judgments as to both defendants.
1. Statement of Facts
This case arises from defendants and various others attacking Randy Bowen on March 17 1999. Five days before, Josh McGee, a friend of Douglas, got into a fight with Bowen. It is disputed as to who provoked the fight. Bowen claims McGee walked by on his way to Carls Jr., bumped Bowens shoulder, and said, "You dont want to fuck with me nigger." Bowen is African-American and McGee and defendants are Caucasian. A few minutes later, McGee and his companions returned and, as McGee passed by Bowen, McGee called Bowen a "nigger." McGee and Bowen argued and then began fighting. Defendants were not present during this incident.
Kelley Gaeta, the girlfriend of a good friend of McGee, testified she witnessed the fight between Bowen and McGee on March 12, 1999. According to Gaeta, Bowen initiated the fight on March 12th. He called McGees companion a "white trash bitch" and spit on her, and called McGee a "white trash punk" several times before attacking McGee.
Bowen testified that on March 17, 1999, around 8:30 p.m., Bowen and his friends, Natalie Minard, Daniel Luz, and Laura Neal, went to a party in a rural area of Temecula, known as Murdocks. There were about 200 people at the party. Most of the attendees were Caucasian. For about an hour Bowen socialized with his three friends. He told his friends he felt uncomfortable at the party and wanted to leave. He had seen several skinheads with Nazi symbols on their clothing.
Meanwhile, McGee told Brian Mennig, a friend of Douglass, that Bowen had beaten McGee up and thrown him into a news rack at Carls Jr. At the Murdocks party, Mennig told Alan Yantis, about the incident and he told others at the party, including defendants. Mennig saw defendants and others looking and pointing at Bowen. Someone asked Mennig to confront Bowen and said the others would back him up. Mennig refused.
Bowen testified that, while he was waiting for his companions to say good-bye to their friends, Miskam walked up behind him and struck his head with a glass bottle. Bowen asked Miskam why he did that and Miskam said, "We dont like niggers at our party." Douglas and several other skinheads were standing next to Miskam. When Bowen turned to leave, Miskam grabbed him by the shoulder. Bowen punched Miskam in the cheek and walked quickly down a hill toward Minards car. A group of skinheads followed him, yelling "kill the nigger; get that nigger." Bowen started running when several skinheads, including defendants, started chasing him, yelling "kill the nigger" and "we dont want niggers at our party." Miskam shouted, "halt, skinheads," and the group stopped and yelled, "Heil, Hitler." The group then continued running after Bowen, shouting "youre going to die, nigger," and "we are going to get you, nigger." Miskam and others yelled, "Heil, Hitler."
When Bowen reached Minards car, eight to ten skinheads, including Miskam and Douglas, surrounded Bowen by the car. Bowen testified that, as he reached for the car door handle, Douglas said he was going to kill Bowen and slashed his back with a knife. Alan Yantis "jump kicked" Bowen. The others taunted him, called him "nigger," swung at him, kicked him, and threatened to kill him.
Bowen ran away and hid in the bushes. The skinheads returned to the party, marching in a "V" formation, shouting "nigger" and "Seigh Heil," and making Nazi salutes. Minard drove her car over to where Bowen was hiding in the bushes. Bowen got in. As they attempted to drive away, the car got stuck in the sand. Bowen ran to a nearby residence and the police were called.
Bowen sustained a nine-inch slash and a small cut on his back, a wound to his head requiring staples, scratches on his forehead, and cuts in the neck area, which also required stitches.
Mennig testified that, after law enforcement officers left the scene, he saw Allen Yantis and Douglas looking for knives. Yantis said the police must have found them. Miskam asked Mennig to join the Western Hammerskins and handed Mennig a Hammerskins business card. Mennig believed defendants were skinheads and they were with others who were also skinheads.
Deputies found two knives in the area where Yantis and Douglas had been looking for knives.
At trial, FBI Special Agent John Schafer, Riverside Police Department Sergeant Frank Assumma, and Riverside County Sheriff Deputy Jeff Kubel provided expert testimony for the prosecution on gangs.
Schafer testified the Hammerskins Nation is an international white supremacist hate group. They target blacks and Jews, and seek to create separate states for the races. They use violence to drive non-Caucasians from Hammerskinss neighborhoods. They also are anti-government and anti-law enforcement. The Western Hammerskins is a United States subsidiary and official chapter of the Hammerskins Nation.
Assumma also testified that the Hammerskins used violence to achieve their objectives. Its symbol consists of crossed hammers. Assumma concluded defendants were members of the Western Hammerskins and opined the Western Hammerskins is a criminal street gang. Assumma concluded Miskam was a Western Hammerskins based on his tattoos and clothing, Hammerskins Nation literature and posters found in his home, his listing on the Hammerskins Nation website, and the content of letters he sent from jail. Assumma concluded Douglas was a Western Hammerskins based on his tattoos, his listing on the Hammerskins Nation website, and the content of letters he sent from jail.
Assumma testified that a primary activity of the Western Hammerskins was committing assaults with deadly weapons and with force likely to cause great bodily injury to minorities. He was aware of incidents, other than the charged offenses, in which Western Hammerskins used such violence. He further concluded the charged offenses were committed in furtherance of the Western Hammerskins.
Kubel testified he was a gang officer in the Temecula area. In 1996, he identified defendants and Allen Yantis as members of a local skinhead organization. They wore necklaces with a hammer and swastika. Several other members admitted they were racist skinheads and defendants were present with the group at the time.
Gang expert Anthony Casas testified on behalf of defendants. Casas was a retired associate warden of San Quentin Prison, who had organized a state prison gang task force to investigate the culture of prison gangs. He testified that in his opinion the Western Hammerskins is not a criminal street gang since it does not have a pattern of criminal activity, and committing crimes of violence is not one of its primary activities. But Casas also stated that the Hammerskins National organization "could very well be" a criminal street gang.
2. Sufficiency of Evidence of Gang Enhancement
Defendants contend there was insufficient evidence to support the true finding that the Western Hammerskins is a criminal street gang under section 186.22, subdivision (b).
A. Standard of Review
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears `that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.]"[]
People v. Bolin (1998) 18 Cal.4th 297, 331.
B. Section 186.22
Gang-related offenses that satisfy certain criteria are subject to greater penalties under the Street Terrorism Enforcement and Prevention Act, also known as the STEP Act.[] Section 186.22, subdivision (b)(1) prescribes additional terms of imprisonment for ". . . any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the special intent to promote, further, or assist in any criminal conduct by gang members, . . ." The Legislatures intent in enacting this provision was "to seek the eradication of criminal activity by street gangs by focusing upon patterns of criminal gang activity and upon the organized nature of street gangs."[]
Section 186.20 et seq.
A criminal street gang is defined in section 186.22, subdivision (f) of the STEP Act as ". . . any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts . . ., having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity."[]
Section 186.22, subdivision (f); see also People v. Sengpadychith (2001) 26 Cal.4th 316, 319-320; People v. Gardeley (1996) 14 Cal.4th 605, 616, 623.
The courts commonly refer to the acts relied upon in establishing a gangs "primary activity" and "pattern of criminal activity" as "predicate acts." As noted by the court in People v. Gardeley,[] the term "predicate acts" in this context is a misnomer because the criminal acts that may be relied upon in establishing "primary activity" and "pattern of criminal activity" need not precede the charged offense. They may be concurrent offenses and may include the charged offense. Nevertheless, we will refer to such acts as predicate acts for lack of a better term.
People v. Gardeley, supra, 14 Cal.4th 605.
In Gardeley, our high court explained that to impose the gang enhancement "the prosecution must prove that the crime for which the defendant was convicted had been `committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. [Citation.] In addition, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a `pattern of criminal gang activity by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called `predicate offenses) during the statutorily defined period. (§ 186.22, subds. (e) and (f).)"[]
People v. Gardeley, supra, 14 Cal.4th at pages 616-617; see also People v. Loeun (1997) 17 Cal.4th 1, 8.
The predicate offenses are listed in subdivision (e) of section 186.22 and include assault with a deadly weapon or force likely to cause great bodily injury and threats to commit crimes resulting in death or great bodily injury.
C. Ongoing Organization
There was ample testimony, primarily by gang experts, establishing that the Western Hammerskins is a skinhead organization that uses violence to perpetrate its racist objectives. There also was substantial evidence that defendants were members of the Western Hammerskins. Experts concluded defendants were Western Hammerskins based on their tattoos, conduct, and racist remarks. Defendants were registered members of the Western Hammerskins and Miskam held a leadership role in the attack on Bowen. Douglas accompanied Miskam in the attack, as did other skinheads.
A reasonable inference could also be made that the others in the group were Western Hammerskins based on expert opinion testimony, in conjunction with testimony regarding their behavior, dress, and racist remarks. Their association with defendants and their compliant and united response to Miskams Neo-Nazi directives during the attack indicated they were acting as a disciplined group under Miskams leadership, in furtherance of Western Hammerskins racist objectives. In addition, there was testimony that one of the participants in the attack, Yantis, had previously acknowledged being a Western Hammerskins.
This evidence is sufficient to establish defendants were members of an ongoing association of three or more persons with a common name or common identifying sign or symbol and that defendants crimes were gang related, that is, they were "committed for the benefit of, at the direction of, or in association with any criminal street gang, with the special intent to promote, further, or assist in any criminal conduct by gang members, . . ."[]
Section 186.22, subdivision (b)(1).
D. Primary Activity
The evidence also is sufficient to support a finding that one of the Western Hammerskinss primary activities is assaulting minorities, such as African Americans, with a deadly weapon or force likely to cause great bodily injury. Gang expert testimony established that the Western Hammerskins used violence to further their racist objectives.
In addition, there was evidence that defendants and other members of their group committed one or more predicate acts during the attack. On at least two occasions, defendants and other gang members committed the crime of assault with a deadly weapon or likely to cause great bodily injury. They also threatened to kill Bowen. Miskam hit Bowen over the head with a glass bottle, another member of the group, allegedly Douglas, slashed Bowens back with a knife, and Yantis jump-kicked Bowen. During the groups attack on Bowen, defendants and their associates repeatedly threatened to kill Bowen, yelled racist slurs and Neo-Nazi expletives, and chased and beat him.
E. Pattern of Criminal Acts
Evidence of these violent acts also established that defendants gang engaged in a pattern of criminal gang activity consisting of two or more of the enumerated acts in section 186.22, subdivision (e). In People v. Loeun,[] the California Supreme Court held that a separate, concurrent assault by a fellow gang member could be relied upon to establish the requisite pattern of criminal activity under section 186.22.[]
People v. Loeun, supra, 17 Cal.4th 1.
People v. Loeun, supra, 17 Cal.4th at page 5.
In Loeun, the defendant and a fellow gang member attacked a gas station clerk, believing he was a member of a rival gang. The defendant hit the clerk with a baseball bat and then another member struck the clerk with a tire iron. The defendant and his companion admitted they were members of a Crip gang sect called Cambodians With Attitude (CWA).
The defendant in Loeun argued there was insufficient evidence to find the requisite "pattern": "Specifically, he contended that if the prosecution relies on the charged crime for one of the `two or more predicate offenses statutorily required to establish the requisite `pattern of criminal gang activity, the prosecution must in addition present evidence of at least one prior offense of gang activity."[]
People v. Loeun, supra, 17 Cal.4th at page 7.
The Loeun court disagreed, explaining, "when the prosecution chooses to establish the requisite `pattern by evidence of `two or more predicate offenses committed on a single occasion by `two or more persons, it can, as here, rely on evidence of the defendants commission of the charged offense and the contemporaneous commission of a second predicate offense by a fellow gang member."[]
People v. Loeun, supra, 17 Cal.4th at page 10.
Douglas relies on People v. Zermeno[] for the proposition that there was insufficient evidence of two or more predicate offenses committed by different individuals since the jury acquitted Douglas of the knife use allegation. Douglas argues that this indicates the jury convicted him based on the theory of aiding and abetting Miskam, which under Zermeno, is insufficient to constitute a separate predicate offense.
People v. Zermeno (1999) 21 Cal.4th 927.
In Zermeno the two offenses relied upon to support a finding of a pattern of criminal gang activity consisted of the defendants charged assault offense and his fellow gang members aiding and abetting in the offense by preventing the victims friends from assisting the victim. The court in Zermeno held that the aiding and abetting offense was not a separate criminal offense within the meaning of section 186.22 and therefore could not be considered as a second offense for purposes of establishing a pattern of gang activity.[]
People v. Zermeno, supra, 21 Cal.4th at pages 931-933.
But Zermeno is distinguishable from the instant case since there were two separate assaults by two different assailants.[] Even though the jury concluded there was insufficient evidence to convict Douglas of stabbing Bowen, there was overwhelming evidence that a gang member other than Miskam stabbed Bowen. There was thus sufficient evidence that two separate predicate criminal acts were perpetrated by two or more gang members. One of the predicate acts consisted of Miskam hitting Bowen over the head with a glass bottle. The second act occurred a little later when another gang member stabbed Bowen in the back.
People v. Zermeno, supra, 21 Cal.4th at pages 932-933.
We conclude there was sufficient evidence of each of the elements of the criminal street gang enhancement. Accordingly, the trial court did not err in imposing the gang enhancement as to both defendants.
3. Prosecutorial Misconduct
Defendants contend the prosecutor committed misconduct by engaging in improper closing and rebuttal argument to the jury. Specifically, defendants argue that the prosecutors argument (1) constituted an inflammatory, unwarranted personal assault on defendants, (2) introduced his own opinions, (3) disparaged defense counsel, and (4) improperly appealed to the passions of the jury.
During final argument the prosecutor stated: "Well, Ladies and Gentlemen, if that definition can be used to put black kids away, can be used to house and incarcerate Mexican kids, Latino kids, Oriental kids, Oriental gang bangers, and then it fits white kids, as well. Fair is fair. And the color of a persons skin should not allow him to escape a county building." Douglas objected on the ground the statements were an "appeal, passionate." The trial court sustained the objection.
Defendants complain the above comment was an improper emotional appeal to the jury to make a true finding on the criminal street gang allegation. Defendants claim the comment improperly focused the jurys attention on defendants race instead of on the legal elements of the criminal street gang allegation.
Although trying to inflame the jurys passion is improper by raising racial matters, here the prosecutors overall point, that racial stereotyping, and in particular, defendants Caucasian race, should not preclude a true finding on the criminal street gang enhancement, was legitimate. In addition, the court sustained Douglass objection to the comment. The jurors no doubt knew they were not to consider the comment because of the reference to race. Even if the comment was unduly inflammatory, such error was harmless under any of the harmless error standards for review.[] We see no reasonable probability that the prosecutors brief and isolated comments could have influenced the jurys guilt determination.[]
People v. Gionis (1995) 9 Cal.4th 1196, 1220; People v. Watson (1956) 46 Cal.2d 818, 836; People v. Breverman (1998) 19 Cal.4th 142, 178; People v. Prettyman (1996) 14 Cal.4th 248, 272; Chapman v. California (1967) 386 U.S. 18, 24.
People v. Medina (1995) 11 Cal.4th 694, 760.
Defendants next object to the following comment by the prosecutor during closing argument regarding Miskams involvement with the Hammerskins: "Was it `at the direction of? Well, Hitler — Im sorry — Travis is leading the charge. Travis is the one that yells out `Heil Hitler, at which point he and his boys take after the Negro and attack the Negro." Miskam later objected to this comment during a motion for mistrial, which the trial court denied. Miskam complains the prosecutor referred to Miskam as Hitler, once again inflaming the jurors passions.
Under the circumstances here briefly referring to Miskam as Hitler does not constitute prejudicial error. Defense counsel stated during closing argument that the prosecutors "Freudian slip, `Well, Hitler — oh, I mean Travis" . . . was funny. [¶] . . . These boys are entitled to a fair trial. Each of you is responsible to deliberate on this case. Forget about what you think about white-supremacists. . . . What you need to think about is: Do they have the right to do this? . . . Is this a crime or is this a philosophy in a group?" The prosecutor responded in rebuttal that defense counsel accused him of intentionally mistaking Hitlers name for Miskams name, and added: "And as much as Id like to take credit for that nice little bit, in all honesty, that really was a Freudian slip."
Such closing arguments sufficiently neutralized any inflammatory effect the comment may have initially had on the jury. There was no prejudice here, particularly since the comment was very brief and isolated.[]
People v. Medina, supra, 11 Cal.4th at pages 759-760;People v. Gionis, supra, 9 Cal.4th at page 1220; People v. Watson, supra, 46 Cal.2d at page 836; People v. Breverman, supra, 19 Cal.4th at page 178; People v. Prettyman, supra, 14 Cal.4th at page 272; Chapman v. California, supra, 386 U.S. at page 24.
The next comment defendants object to consists of the prosecutor stating during rebuttal: "And, gee, we throw a blanket around who was there. And what do we find? We find Travis, the leader of his little cult of personality; with his right-hand man, Allen Yantis; his major stooge, Daniel Butler; the editor of their hate rag, Gregg McDaniel; and the brooding little killer, Jesse Douglas." Douglass attorney objected and the trial court sustained the objection, noting, "We dont need name calling."
Defendants argue that this reference to Douglas as a "brooding little killer" was inflammatory, incorrect, and an unwarranted assault on Douglas. Douglas was not charged with murder and there was no evidence he had ever killed anyone.
Even if the comment was improper, such error was harmless under any of the harmless error standards for review.[] After Douglass attorney objected, and the trial court admonished defense counsel not to call defendants names, Douglass attorney responded, "Would-be killer, as proved by the evidence in this case. [¶] When he says, `Im going to cut you, Nigger. Nah, Nigger, Im going to kill you, I didnt make him say those words. It wasnt me. He said them by himself."
People v. Gionis, supra, 9 Cal.4th at page 1220; People v. Watson, supra, 46 Cal.2d at page 836; People v. Breverman, supra, 19 Cal.4th at page 178; People v. Prettyman, supra, 14 Cal.4th at page 272; Chapman v. California, supra, 386 U.S. at page 24.
As with the other comments objected to by defendants, the prosecutors reference to Douglas as a "would-be killer" was harmless under any of the harmless error standards for review.[] The court admonished the prosecutor not to call defendants names, and the prosecutor acknowledged such impropriety and corrected his statement by referring to Douglas as a "would-be killer." Defense counsel did not object to this characterization of Douglas. The jury was well aware that defense counsels reference to Douglas as a killer was improper. Under these circumstances, the misconduct cannot be considered prejudicial.[]
People v. Gionis, supra, 9 Cal.4th at page 1220; People v. Watson, supra, 46 Cal.2d at page 836; People v. Breverman, supra, 19 Cal.4th at page 178; People v. Prettyman, supra, 14 Cal.4th at page 272; Chapman v. California, supra, 386 U.S. at page 24.
People v. Millwee (1998) 18 Cal.4th 96, 140, cert. den. (1999) 525 U.S. 1149; People v. Jones (1997) 15 Cal.4th 119, 168, cert. den. 522 U.S. 955, overruled on other grounds inPeople v. Hill (1998) 17 Cal.4th 800, 823, footnote 1.
Defendants complain that the prosecutors following statements made during rebuttal impugned the integrity of defense counsel: "What do you do about Brian Mennig? What do you do about Gary Kesterson? What do you do about Frank Assumma? What do you do about John Cook? What do you do about Josh Leone? What do you do [sic] Natalie Minard? What do you do about Daniel Luz? You do the only thing they can do, is get up here and say liar, liar, liar. [¶] You know, Ladies and Gentlemen, one of the first tricks you learn as a trial attorney is repetition is learning. You say it often enough and people start to think its true."
Douglass attorney objected on the ground it "might be an improper comment." The trial court sustained the objection and the prosecutor continued, arguing that "Repetition is learning. They said it over and over and over again, until it finally had been said so many times you start to believe it. This is supposed to be a search for truth."
Defendants complain that the prosecutor disparaged defense counsel by arguing defense counsel used trickery to confuse and mislead the jurors. "A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel. [Citations.]"[] "A defendants conviction should be based on the evidence adduced at trial, and not on the purported improprieties of his counsel. [Citation.] When a prosecutor denigrates defense counsel, it directs the jurys attention away from the evidence and is therefore improper. [Citation.]"[]
People v. Hill, supra, 17 Cal.4th at page 832.
People v. Frye (1998) 18 Cal.4th 894, 978, cert. den. (1999) 526 U.S. 1023.
Prosecutorial misconduct does not require reversal of the judgment unless it is shown to be prejudicial, i. e., unless "`it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error."[]
People v. Holt (1984) 37 Cal.3d 436, 458, quoting People v. Watson, supra, 46 Cal.2d at page 836.
Here, the prosecutor was explaining to the jury that one of the common techniques used by trial counsel is to use repetition as a means of persuasion. The prosecutor noted that the prosecution had provided testimony from numerous witnesses who established defendants were guilty, and the only thing defense counsel could do was to repeatedly argue the witnesses lied.
We do not consider such argument improper, prejudicial disparagement of defense counsel. Prosecuting attorneys making closing arguments are afforded wide latitude in descriptive comment.[] "`Additionally, 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.]"[] The crucial inquiry is whether there is a reasonable probability that a result more favorable to defendant would have been reached if the comments had not been made.[]
People v. Williams (1997) 16 Cal.4th 153, 221; People v. Gionis, supra, 9 Cal.4th at pages 1216-1217; People v. Price (1991) 1 Cal.4th 324, 454-455.
People v. Ochoa (1998) 19 Cal.4th 353, 427.
People v. Barnett (1998) 17 Cal.4th 1044, 1133; People v. Pensinger (1991) 52 Cal.3d 1210, 1250.
Here, the prosecutors comments did not fall outside the wide latitude afforded the prosecutor during closing argument, and even assuming, without deciding, that the prosecutors remarks fell outside that extensive range, we cannot say that the error prejudiced defendants.[]
People v. Millwee, supra, 18 Cal.4th at page 140, cert. den. (1999) 525 U.S. 1149; People v. Jones, supra, 15 Cal.4th at page 168, cert. den. 522 U.S. 955, overruled on other grounds in People v. Hill, supra, 17 Cal.4th at page 823, footnote 1.
Miskam also complains of the following comment made by the prosecutor during rebuttal: "Does anybody doubt that this guy [Bowen] had his back sliced open? Does anybody doubt that the people who sliced his back open were a bunch nucklehead [sic] Nazis?"
Defense counsel did not object to this comment or request an admonition during the trial, and defendants did not raise the objection in their motion for mistrial. Accordingly, the objection is waived on appeal.[]
People v. Medina, supra, 11 Cal.4th at page 760.
Finally, defendants complain that, even if the prosecutors various remarks standing alone may not disclose probable prejudice to defendants case, in the aggregate, these remarks should be deemed prejudicial. We disagree. The statements were generally not improper and, even if some were inappropriate, they were brief, isolated, and not serious enough, even in the aggregate, to have prejudiced defendants.
4. Strike Prior
Miskam contends there was insufficient evidence to support the true finding that his 1997 conviction for violation of section 245, subdivision (a)(1) qualified as a prior strike. He complains it was not established that his prior conviction involved personal use of a deadly weapon and, therefore, there was insufficient proof it was a serious felony under the Three Strikes law.
Miskams contention lacks merit. To qualify as a strike under the Three Strikes law, Miskams prior conviction need not be an assault with a deadly weapon. A conviction for assault causing great bodily injury also qualifies as a prior strike.[] There was ample evidence that Miskams 1997 conviction was such an offense. The amendment to Miskams indictment in the instant case alleges that Miskam was convicted in 1997 of "the crime of Assault with a Deadly Weapon and personal infliction of great bodily injury, a felony in violation of Sections 245(a)(1) and 12022.7 . . . ." Trial exhibit 190, consisting of the 1997 conviction felony complaint, minute order, and superior court guilty plea form, provide proof that the 1997 conviction was entered after Miskam pled guilty to three counts of violating sections 245(a)(1) and admitted a great bodily injury enhancement allegation on one of the counts.
Sections 1192.7, subdivision (c) and 667.5, subdivision (c).
This evidence is sufficient to support the trial courts finding that Miskams 1997 conviction qualified as a prior strike.
5. Imposing Upper Term
Miskam contends the trial court abused its discretion in sentencing him to the upper term on count 2 (assault with a deadly weapon) and imposing the gang and hate crime[] enhancements. He claims the circumstances in aggravation are not supported by the evidence. Miskam asserts that the court should have imposed mid terms. We find no sentencing error.
Sections 186.22 and 422.75.
During sentencing, the trial court stated an aggravated term on count 2 was appropriate since Miskam was on parole when he committed the criminal offense. The court imposed an upper term on the gang enhancement because "the conduct of the defendant involved a high degree of cruelty and viciousness to this victim." As to the hate crime enhancement, the court stated it imposed the upper term because Miskam acted in a leadership role in carrying out the offense.
After informing Miskam of his sentence, the court inquired as to whether there was anything else that needed to be discussed. Miskams attorney mentioned a few things but did not object to Miskams sentence. The court then asked if there was any legal cause why sentence should not be imposed. Miskams attorney responded there was none.
Miskam now complains on appeal that the upper term on count 2 was inappropriate because, although he struck Bowen with a glass bottle, Miskam was not involved in the other aspects of the assault. Also, the fact Miskam was on parole does not warrant an upper term. Miskam argues this factor was already taken into consideration in doubling his sentence under the Three Strikes law and imposing an additional year term for the prison prior.
As to the gang enhancement, Miskam argues that basing the upper term on Miskams "high degree of cruelty and viciousness" was improper because the court also imposed an additional three-year term under section 12022.7 for infliction of great bodily injury. And as to the hate crime enhancement, Miskam argues that imposing the upper term simply because Miskam was in a position of leadership was improper since his leadership had nothing to do with the hate crime enhancement.
As the People point out, Miskam did not raise these objections below. Therefore, Miskam waived them on appeal.[] The court in People v. de Soto[] rejected on waiver grounds the defendants dual-use objection to an enhancement, stating "A defendant cannot for the first time on appeal challenge the manner in which the sentencing judge exercises discretion in making sentencing choices or articulates his or her supporting reasons."[] Quoting Scott, the de Soto court noted, "`Included [within the waiver doctrine] are . . . cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons."[]
People v. Scott (1994) 9 Cal.4th 331, 356, 357, footnote 19; People v. de Soto (1997) 54 Cal.App.4th 1, 4.
People v. de Soto, supra, 54 Cal.App.4th 1.
People v. de Soto, supra, 54 Cal.App.4th at page 4, citing People v. Scott, supra, 9 Cal.4th at page 356.
People v. de Soto, supra, 54 Cal.App.4th at page 8, quoting People v. Scott, supra, 9 Cal.4th at page 353.
Accordingly, Miskam waived his sentencing objections on appeal by not raising them in the trial court despite being given ample opportunity to do so.
6. Disposition
The judgments are affirmed.
We concur: McKinster Acting P.J., King J.