Opinion
C049396
5-11-2007
THE PEOPLE, Plaintiff and Respondent, v. DALE W. DUGGER, Defendant and Appellant.
NOT TO BE PUBLISHED
Two Sacramento County park rangers were patrolling the American River Parkway on the evening of October 12, 2004, following up on complaints that transients were "hanging out" and "drinking to the point of intoxication and becoming belligerent and making [bicycle commuters] feel[] very unsafe." They approached a group of four people, which included defendant Dale Dugger, and asked them to leave the bike trail. Defendant yelled profanities at the rangers and refused to comply. The ensuing confrontation, which defendant and the rangers describe differently, resulted in defendants arrest.
The jury convicted defendant of misdemeanor attempt to commit violent injury on a peace officer (Pen. Code, § 241, subd. (b) — counts two and three), felony attempt to deter and knowing resistance of a peace officer in the discharge of his duties (§ 69 — counts four and five), and misdemeanor resisting a peace officer in the discharge of his duties (§ 148, subd. (a)(1) — counts six and seven). It acquitted defendant of assault on a peace officer with a deadly weapon (§ 245, subd. (c) — count one). The court sentenced defendant to two years in prison: the middle term of two years in count four; a concurrent term of two years in count five; concurrent terms of two years in counts two and three, which were stayed pursuant to section 654; and one-year jail terms for counts six and seven, also stayed pursuant to section 654.
Hereafter, undesignated statutory references are to the Penal Code.
On appeal, defendant argues he is entitled to reversal because: (1) the court erred in denying his Batson/Wheeler motion; (2) the court abused its discretion in three evidentiary rulings; (3) the prosecutor committed misconduct in closing argument; (4) the court erred in failing to instruct the jury on the specific intent and the unanimity requirement; and (5) he was prejudiced by cumulative error. We shall affirm the judgment.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson), overruled in part by Powers v. Ohio (1991) 499 U.S. 400, 415-416 [113 L.Ed.2d 411, 428-429]; People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in part by Johnson v. California (2005) 545 U.S. 162, 164-165, 168 [162 L.Ed.2d 129, 135, 138] (Johnson).
Defendant also contends, and the People agree, that the court erred in imposing felony sentences for the misdemeanor convictions in counts two and three. The trial court corrected the sentence in an amended abstract of judgment filed January 25, 2007. We do not address the issue.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Rangers Testimony:
The two victims, rangers Timothy McElheney and William Safford, drove their park ranger truck to the location where defendant and his companions were sitting along the bike path. When McElheney and Safford told the group to "gather up their things and move on," defendant called out in a voice that was thick and slurred, "[F]uck you, you dont belong here, you have no jurisdiction here, Im on railroad property, I dont have to leave, I dont have to listen to you." McElheney and Safford told defendant he was not on railroad property, the rangers had jurisdiction, and it would be in defendants best interest to gather his belongings and leave. McElheney and Safford suspected defendant was drunk, and got out of their truck to talk with the other members of the group. Two people walked away, leaving the rangers to deal with defendant and his girlfriend, Helen Baggarly.
It was obvious to both McElheney and Safford that defendant was drunk. Defendant stood up as McElheney approached, revealing a large knife attached to his belt. McElheney directed the defendant to stop where he was. He tried to pin down defendants right arm to prevent him from reaching for the knife. Defendant responded by turning around and reaching into one of the shopping carts for the handle of a shovel. McElheney tried to grab defendants arm again, but defendant pulled away and retrieved a 32-inch metal pipe from another shopping cart. Defendant held the pipe like a baseball bat and made small gestures, as if he were trying to ward off the two rangers. McElheney told defendant to drop the metal pipe, pulled out his baton, and moved eight to 10 feet away from defendant. Safford stood about 10 feet away. McElheney told defendant that he was under arrest.
Safford called for backup and tried to subdue defendant with pepper spray. Defendant continued to make short, chopping motions with the metal pipe, stating "[C]ome and get me. Im not going, not going to stop." Safford sprayed defendants face a second time, with no visible effect. Defendant continued to yell obscenities. After the third application of pepper spray, defendant began to wipe his eyes and nose. McElheney took that opportunity to move closer to defendant to make the arrest. When McElheney took his first step, defendant made a full swing with the metal pipe, missed McElheney, and fell backward to the ground. Defendants speech and actions confirmed McElheneys belief defendant was intoxicated.
Once defendant reached the ground, the rangers pinned him down. Safford removed the knife from its sheath and threw it out of defendants reach. Defendant yelled, kicked and flailed his left arm. Some of the kicks landed on McElheney, but did not injure him. At no time did defendant comply with the rangers verbal commands to stop fighting and cooperate. McElheney hit defendant three or four times in the ribs with his baton to force defendants right arm free to be handcuffed.
While waiting for a backup officer to transport defendant to jail, Safford and McElheney checked defendant for weapons. They took various items from defendant, including his belt, knife sheath and shoe laces. Defendant continued to resist during this process by attempting to kick both rangers and trying unsuccessfully to grab McElheneys groin area through his clothes.
McElheney and Safford met defendant at the jail. Defendant was initially compliant while he was sitting and completing the booking process with Safford. However, defendant stood up a few minutes into the paperwork and refused to comply when McElheney told him to sit down. McElheney forced defendant into the chair by moving his feet and pushing down on his shoulders. At that point, defendant stiffened his body and attempted to bite McElheneys fingers. McElheney pinned defendants head against the wall. Defendant became more aggressive and kicked Safford. The rangers yelled for assistance and deputies helped subdue defendant with leg restraints and a spit mask.
B. Baggarlys Testimony:
Baggarly, who is deaf, testified at trial through a sign interpreter. She stated she was homeless and had known defendant for three years. Baggarly denied that defendant had a knife and denied that he pulled a shovel from his shopping cart. She testified that the knife belonged to the rangers and they were "making up the story." Baggarly saw the heavyset ranger argue with defendant and hit defendant with his baton. She stated that defendant fell to the ground after the rangers used the pepper spray. According to Baggarly, defendant did not try to fight the ranger.
When the prosecutor asked Baggarly if defendant had been drinking alcohol, she responded, "No, no. It was just beer." She testified defendant drank one 40-ounce bottle of beer before the rangers arrived. This testimony apparently contradicted her earlier statement to defense counsel that defendant drank six 12-ounce beers in addition to the 40-ounce bottle. Baggarly stated at trial that the defendant was drunk when the rangers approached him.
C. Defendants Testimony:
Defendant testified that he and Baggarly were together on the bike trail around 6:00 p.m. on the afternoon of his arrest. Two friends, Steve and Stephanie, were also present. Defendant testified that he had consumed four cans of iced tea and one 40-ounce bottle of beer, but was not drunk. He identified the metal pipe as a "cane and a tool" which he kept near his shopping cart. Defendant stated it was customary for him to carry the knife the rangers recovered. He used the knife to eat and cut rope.
Defendant recognized the rangers when they drove up. He stated, "They contact somebody sitting there every day." This time, according to defendant, the rangers were rude when they told defendant to move his belongings. He did not respond rudely, but said, "here we go again" and complained, "youre hassling this old crippled man." The "big fat" ranger, identified by defendant as McElheney, got out of the truck and started questioning Steve and Stephanie.
Defendant stated he began walking toward his cart to turn off the radio. Defendant denied picking up a yellow shovel handle. He acknowledged that he picked up the 32-inch metal pipe he used as a walking cane, but denied holding it like a baseball bat or trying to hit the rangers with it. According to defendant, McElheney grabbed defendant by the shoulder and "started zapping [him] with this damn electronic thing." Defendant testified that he fell to the ground when McElheney spun him around. The second ranger sprayed him twice with pepper spray. Defendant testified that McElheney grabbed him again by the shoulder and he fell to the ground face first with his right arm pinned under him. Defendant used his left arm to try to get up. He denied cursing at the rangers. The only thing defendant remembered saying was "you [are] hurting a crippled old man." The rangers handcuffed defendants hands and feet on the trail, and carried him bodily to another rangers car for transport to jail. Defendant testified no one told him he was arrested. When asked if he physically resisted the ranger, defendant responded, "When they were hurting me I imagine I did."
Defendant also testified about events at the jail. He stated the rangers shoved him up against the wall and conceded he probably cursed the officers at that point. Defendant denied trying to bite one of the rangers, noting that he had no teeth. Defendant testified he was coughing, not spitting at the rangers.
On cross-examination the prosecutor asked defendant if he was polite to the officers, and defendant responded, "Yes, Im always that way." When asked if he remained calm and polite after he retrieved the metal pipe he used as a walking stick, defendant said, "I dont know. [¶] . . . [¶] I dont remember," and continued, "Usually Im a polite person with everybody. I dont bother nobody, I dont hurt nobody."
DISCUSSION
I.
The Batson/Wheeler Motion
During voir dire the prosecutor used two peremptory challenges to excuse Diane T. and Anita W., two of the three African-Americans on the panel. Defense counsel brought a "Wheeler Motion," arguing there did not appear to be any reason other than race for excusing the two women. The court found that defense counsel had failed to make a prima facie case of bias, but allowed the prosecutor to make a record of her reasons for excusing Diane T. and Anita W. On appeal, defendant contends the court erred under Johnson, supra, 545 U.S. 162 and Miller-El v. Dretke (2005) 545 U.S. 231 (Miller-El) because the record shows defendant raised an inference of bias based on statistical disparity. There is no merit in this contention.
"Federal law following Batson holds that exercising peremptory challenges solely on the basis of race offends the Fourteenth Amendments guaranty of the equal protection of the laws [citations], and Wheeler holds that such conduct violates defendant[s] right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the state Constitution [citation]." (People v. Huggins (2006) 38 Cal.4th 175, 226.) In Johnson, the United States Supreme Court resolved a conflict between federal law and California law on the proof required to establish a prima facie case of bias under Batson, rejecting Wheelers "more likely than not" standard in favor of Batsons "inference of discriminatory purpose." (Johnson, supra, 545 U.S. at pp. 164, 168 [162 L.Ed.2d at pp. 135, 138].)
Under Batson, as reaffirmed by Johnson, courts must follow a three-step process in determining whether the prosecutor violated defendants constitutional rights: "First, the defendant must make out a prima facie case `by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. [Citations.] Second, once the defendant has made out a prima facie case, the `burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes. [Citations.] Third, `[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination. [Citation.]" (Johnson, supra, 545 U.S. at p. 168 fn. omitted & italics added.)
In the third stage of the Batson analysis, the defendant may use statistical disparity — the comparison of the prosecutors reasons for challenging a juror excused from service "with the prosecutors actions with respect to other jurors to determine whether the reasons given were pretextual" — to rebut the prosecutions race-neutral explanation for exercising its peremptory challenge in a particular manner. (People v. Gray (2005) 37 Cal.4th 168, 188-189; see Miller-El, supra, 545 U.S. at p. 241 .) Although a statistical disparity may be sufficient to make a prima facie inference of bias in the first instance, that statistical disparity can be dispelled by other relevant circumstances, including the prosecutors questions to the prospective juror. (Williams v. Runnels (2006) 432 F.3d 1102, 1107.)
"`[T]he prosecutors explanation need not rise to the level justifying exercise of a challenge for cause. [Citation.] Rather, adequate justification by the prosecutor may be no more than a `hunch about the prospective juror [citation], so long as it shows that the peremptory challenges were exercised for reasons other than impermissible group bias and not simply as `a mask for race prejudice [citation]." (People v. Williams (1997) 16 Cal.4th 635, 664.)
The trial in this case took place in February and March 2005, before the United States Supreme Court decided Johnson. (Johnson, supra, 545 U.S. at pp. 162 & 164 [162 L.Ed.2d at pp. 129 & 135].) The record does not demonstrate clearly which standard the trial court used. In this procedural setting, we review the record de novo, apply the Johnson standard, and "resolve[] the legal question `whether the record supports an inference that the prosecutor excused a juror on the basis of race. [Citations.]" (People v. Buchanan (2006) 143 Cal.App.4th 139, 145-146.) Based on our independent review of the record, we conclude defendant failed to establish a prima facie case "`by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." (Johnson, supra, at p. 168 .) The courts ruling withstands review.
Defense counsel cited only the fact that the prosecutor used her peremptory challenges to excuse two out of three potential jurors as the basis for her Batson/Wheeler motion. She also stated she was satisfied that both Diane T. and Anita W. could be fair. The fact that the prosecutor left one African-American juror on the jury is significant. "`[W]hile the fact that the jury included members of a group allegedly discriminated against is not conclusive, it is an indication of good faith in exercising peremptories, and an appropriate factor for the trial judge to consider in ruling on a Wheeler objection. [Citation.]" (People v. Stanley (2006) 39 Cal.4th 913, 938, fn. 7.)
The responses to the prosecutors questions also provide race-neutral justification for excusing Diane T. and Anita W. Diane T. received a law degree in 1983, but did not practice law. In response to a question regarding her experiences with law enforcement, Diane T. described having her car broken into and her purse stolen 15 years before. Next, Diane T. stated that, "bounty hunters surrounded [her] house" in a case of "mistaken identity, impersonating officers, threatening to break the door down." She believed the police should have done a better job of handling the case. Finally, Diane T. described witnessing a domestic violence incident in Los Angeles when she was 11 or 12 years old. She watched police officers beat the alleged perpetrator after he had been placed in a squad car. Diane T. nonetheless stated she would have no difficulty being fair to both sides. The fact that Diane T. experienced what could be characterized as negative contacts with law enforcement was an adequate, race-neutral justification for exercising a peremptory challenge.
Anita W. described a more extensive and personal connection with law enforcement and the courts. One of her daughters was in prison and the other daughter was currently a defendant in a criminal case. Anita W. believed that one or both of her daughters were being treated unfairly. Anita W. equivocated on the question whether she could be fair to both sides in light of these experiences, but ended up answering "No." The prosecutor could reasonably suspect a juror would be unsympathetic to the prosecution if he or she had a close relative involved in the criminal justice system. (People v. Arias (1996) 13 Cal.4th 92, 138; People v. Douglas (1995) 36 Cal.App.4th 1681, 1690.) The prosecutor was justified in using a peremptory challenge to excuse Anita W.
II.
Evidentiary Rulings
Defendant maintains the court abused its discretion and/or denied him his right to present a defense and confront witnesses in three evidentiary rulings: (1) excluding evidence of the rangers reputations for singling out and harassing homeless people; (2) allowing the prosecutor to rebut defendants testimony regarding his character for politeness and peacefulness with a question about a prior conviction for battery; and (3) allowing the prosecutor to inquire whether defendant was intoxicated when he committed the prior battery. We conclude there was no abuse of discretion and no violation of defendants constitutional rights.
A. Evidence of the Rangers Reputations:
Defendant wanted to introduce evidence that the rangers had a reputation for aggression or violence toward the homeless population along the American River bike trail. Although defense counsel did not state the statutory basis for the request, the Attorney General concedes, "[d]efense counsel was clearly attempting to offer evidence of either reputation or specific instances of violent conduct by Rangers McElheney and Safford" under Evidence Code section 1103. Defense counsel also raised Evidence Code section 1105 as a possible basis for admitting the evidence. On appeal, defendant argues the court disregarded the standard for admission of evidence under Evidence Code sections 1103 and 352, and abused its discretion in excluding the testimony of Vera Barter, a social worker at Loaves and Fishes, and Diane Evans, a homeless acquaintance of defendants. There is no merit in these arguments.
Evidence Code section 1105 provides: "Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom."
Evidence Code section 1103 reads in relevant part:
"(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is:
"(1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character."
Evidence of reputation differs from lay opinion. "`Reputation is not what a character witness may know about defendant. Reputation is the estimation in which an individual is held; in other words, the character imputed to an individual rather than what is actually known of him either by the witness or others. [Citation.] The rule that lay opinion testimony must be based on the witnesss personal observation thus does not apply to reputation testimony, and indeed the Evidence Code imposes no such requirement." (People v. McAlpin (1991) 53 Cal.3d 1289, 1311.)
The court conducted Evidence Code section 402 hearings to determine the admissibility of evidence of the rangers reputations. Barter testified that she had worked at Loaves and Fishes for eight years. Her job was to greet the guests, serve coffee, break up fights, and assist guests in obtaining social services. She stated she was personally acquainted with defendant who had come to Loaves and Fishes every day for the last year. Barter had never met any of the park rangers who worked in the vicinity, but had heard complaints about them. Guests at Loaves and Fishes "complained of the rangers targeting specific guests, being rude, not treating anyone with any type of respect . . . ." However, Barter had not heard the rangers were physically violent with the homeless campers. As to ranger Safford, Barter testified, "[t]heres been rumors that hes responsible for the death of dogs . . . ."
Evans testified at the 402 hearing that she had known rangers McElheney and Safford for four or five years. She stated that Safford wanted her "to go away. [¶] . . . [¶] Were not disrespectful towards each other . . . [w]ere not rude about it." When asked specifically, Evans testified that Safford had been disrespectful or rude to her in the past. "He told me I needed to leave . . . ." Evans stated that the rangers had confiscated and damaged her property numerous times in the past, although it was nothing she could prove. She also suspected Safford had done something to her dog because the dog did not like him.
When asked specifically whether rangers McElheney and Safford had a reputation for singling out certain campers and harassing them, Evans responded, "Yeah, very much so." However, she stated they had not harassed her about her animals and she had not personally observed them singling out specific campers. In Evanss opinion, McElheney and Safford were not physically aggressive toward the campers. She had never seen either of them interact with defendant, although she saw defendant several times a day. Evans had not seen McElheney and Safford single out defendant.
After hearing argument, the court excluded the reputation evidence under Evidence Code section 352, stating: "The testimony that I have heard in the 402 proceedings has been unhelpful, at least to the Court in terms of suggesting that the officers [sic] reputation at large, or personally is at play here. There is an absence of specifics. All that Ms. Evans could testify to is a general impression, and her own view and opinion, and while that, I respect her opinion, every time she was asked by [defense counsel] or by [the prosecutor] a question that might have invited some specific factual predicate for her opinion, she did not give it. She gave information or specifics, if at all, that suggested that these officers were just doing their job. Its not at all improbable that these individuals who are being patrolled and focused on by the officers would have other than a positive opinion of those officers. Theyre not going to like having to move along and to pick up their property and interact with these rangers, and I understand that. And all I heard today was testimony that suggested to me that that was the problem. If I hear any relevant specific evidence that relates to these officers and their excessive force or over reaching, or improper conduct, and that seems to factor into this case, I would certainly entertain it and would probably permit it. By definition it would be relevant . . . [A]nd then the issue would simply be whether it was significant in its [sic] probative value and whether it was vital or at least important to the defendants case. None of that is before me right now. Ive seen no such evidence none that raises [sic] to the level of significant value. I find what I have heard to be barely relevant, if that, and if its relevant I find it to be so attenuated and unhelpful and time consuming that I would exclude it under 352 . . . ." (Italics added.)
Evidence Code section 352 states: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
The court properly excluded the evidence of the rangers reputations pursuant to Evidence Code section 352. Barters testimony that rangers in general, and Safford in particular, had the reputation for being rude was of minimal relevance to the question whether McElheney and Safford were known for being physically aggressive toward homeless people. Evans testified specifically that, in her opinion, McElheney and Safford were not physically aggressive in the interactions with the campers. Nor did Barter or Evans suggest that these two rangers had ever singled out and harassed the defendant. Because the reputation evidence was "barely relevant," the court did not abuse its discretion in concluding its probative value was outweighed by the probability its admission would result in an undue consumption of time.
B. Evidence of Defendants Prior Conviction For Battery:
During cross-examination, the prosecutor followed up on defendants testimony that he was sober, polite and did not physically resist the rangers attempt to arrest him. In response to the question, "So you dont remember if you were rude or polite [with the rangers]?" defendant stated, "Usually Im a polite person with everybody. I dont bother nobody. I dont hurt nobody."
Defendant contends the court erred in allowing the prosecutor to impeach his cross-examination testimony with evidence of a prior conviction for battery. Relying on People v. Wagner (1975) 13 Cal.3d 612 (Wagner), he maintains that, "where . . . the character witness is the defendant himself, the prosecutor may not rebut the defendants good-character evidence by asking him about his own prior bad acts" under Evidence Code section 1102. Defendant also argues the prejudicial effect of admitting the prior conviction greatly outweighed its probative value under Evidence Code section 352. We conclude defendants statements did not constitute character evidence and the court did not abuse its discretion in admitting the prior conviction to impeach defendants specific testimony, "I dont hurt nobody."
Evidence Code section 1102 provides:
"In a criminal action, evidence of the defendants character or a trait of his character in the form of an opinion or evidence of his reputation is not made inadmissible by Section 1101 if such evidence is:
"(a) Offered by the defendant to prove his conduct in conformity with such character or trait of character.
"(b) Offered by the prosecution to rebut evidence adduced by the defendant under subdivision (a)."
Evidence Code section 1101 authorizes admission of the prior in the circumstances of this case, and in pertinent part reads:
"(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] . . . [¶]
"(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness." (Italics added.)
The court considered the admission of specific conduct to impeach a defendants credibility in People v. Senior (1992) 3 Cal.App.4th 765. In that case, defendant was prosecuted for molesting his teenage daughter. He testified at trial and essentially admitted the touching. The disputed issue was whether defendant committed the unlawful acts "by force, violence, duress, menace, or fear of immediate and unlawful bodily injury." (Id. at pp. 769-770.) At least three times on direct examination defendant, "categorically denied" ever using threats. (Id. at pp. 777-778.) "Over defendants objection that the evidence was irrelevant and inflammatory, the court ruled that his testimony had opened the door for impeachment by cross-examination and rebuttal about his afternoon telephone threat to kill one of the children if his wife did not return home." (Id. at p. 778.) The appellate court affirmed, stating: "`[R]ebuttal testimony . . . may be proper when it is offered as impeachment to meet evidence on a point put in dispute, i.e., specific statements of fact to which the defense has testified. [Citations.] Defendants answers on direct examination put in issue whether he had ever used force or threats. It was proper to impeach his categorical, blanket denials of threats with evidence of a threat made the same day he denied having threatened the victim with bashing her head and hurting her if she did not act sexy. [Citations.] The evidence of defendants threat was probative of his credibility as a witness. (Evid. Code, § 780, subd. (i).)" (Id. at pp. 778-779.) The court continued, "We recognize that a threat to kill ones own child is potentially prejudicial, as defendant argues, but its probative value was at least equally strong. Evidence that defendant lied on the witness stand about ever using threats undermined his credibility on a key issue in the case, namely whether he threatened the victim in connection with molesting her. The trial court did not exceed its discretion in admitting this rebuttal evidence. (Evid. Code, § 352.)" (Id. at p. 779.)
The record in this case demonstrates that the court properly admitted evidence of defendants prior conviction for battery to impeach defendants testimony about specific acts at issue in the case. On direct examination, defendant denied that he was drunk when approached by McElheney and Safford, denied being rude to them, denied using profanity, and denied attempting to bite or strike the rangers with the metal pipe, the knife or his arms or legs. This testimony directly contradicted the testimony of Rangers McElheney and Safford, placing the defendants credibility at issue.
When defendant continued to describe himself as polite and peaceful on cross-examination, the prosecutor sought permission to impeach him with the prior conviction for battery. Defense counsel countered that she had "tried to avoid the area of character evidence . . . because [she did] not want to open the door." She suggested the problem could be solved without the use of the prior by allowing defendant to clarify on redirect that "he is sometimes not polite to people, and he wasnt polite to the rangers on that day." After reviewing the questions posed by the prosecutor in cross-examination, the court found that the questions were focused on the events alleged in the information, not aimed at defendants character. The court concluded it was legitimate and appropriate under Evidence Code sections 351 and 352, and Proposition 8, for the prosecutor to offer evidence to impeach defendants credibility.
The prosecutor continued her cross-examination of defendant:
"[PROSECUTOR:] But its not exactly true that you dont hurt anybody, right?
"[DEFENDANT:] Depends how you state that.
"[PROSECUTOR:] Well, Mr. Dugger, let me ask you this. You have been convicted at a time in the past of a battery, correct, a battery against another person?
"[DEFENDANT:] Yes."
The prosecutors closing argument supports the conclusion she offered the prior for purposes of impeachment, not as character evidence. She discussed defendants cross-examination and stated that the evidence of the battery was intended to rebut defendants characterization of himself as always polite and peace-loving. Thereafter, the court instructed the jury: "Evidence . . . that the defendant committed a crime other than that for which he is on trial[] [¶] [m]ay not be considered by you to prove that the defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show he was untruthful in some part of his testimony. [¶] For the limited purpose for which you may consider such evidence you must weigh it in the same manner as you do all other evidence in the case. You are not permitted to consider such evidence for any other purpose." (Italics added.)
Defendants reliance on Wagner is misplaced. That case stands for the proposition that where the character witness is the defendant, the prosecutor may not rebut evidence of defendants good character by questioning him about specific acts of prior misconduct. (Wagner, supra, 13 Cal.3d at pp. 618-619.) Wagner is of little help to defendant for two reasons. First, the passage of Proposition 8 which added article 1, section 28, subdivision (d) to the California Constitution in 1982, and its impact on Evidence Code section 787, calls Wagners holding into question. (See People v. Lankford (1989) 210 Cal.App.3d 227, 235-236; see also People v. Taylor (1986) 180 Cal.App.3d 622, 631-632.) Second, in this case defendant testified as to specific acts relating to the October 12, 2004 incident which gave rise to the criminal charges against him; he did not provide general information about his background and character.
Article 1, section 28, subdivision (d) provides: "Right to Truth-in-Evidence. Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103. Nothing in this section shall affect any existing statutory or constitutional right of the press." (Italics added.)
Evidence Code section 787 reads: "Subject to Section 788, evidence of specific instances of his conduct relevant only as tending to prove a trait of his character is inadmissible to attack or support the credibility of a witness."
The court did not abuse its discretion in admitting evidence of defendants prior conviction, and its admonition reminded the jury of the limited purpose for which the evidence was admitted.
C. The Prosecutors Question Regarding Alcohol Use:
The prosecutor followed up her question regarding defendants prior conviction for battery with the following question:
"Q And at the time that you committed that offense, that battery against another person, you were drunk; isnt that right?
"A No, I was not drunk."
The court later instructed the jury: "Do not assume to be true any insinuation suggested by a question asked a witness. A question is not evidence and [may be] considered only as it helps you to understand the answer."
Defendant argues this question violated Evidence Code section 1101, subdivision (a) by improperly suggesting that he had a propensity for getting drunk and acting violently. Defendant maintains that regardless of his negative response, and the courts general instruction that a question is not evidence, the prosecutors question also suggested to the jurors that she "had a source of information unknown to them [that would] corroborate[] the truth of the matters in question." (See Wagner, supra, 13 Cal.3d at pp. 619, 621.)
As we explained, Evidence Code section 1101, subdivision (a) provides: "Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion."
We agree that the prosecutors question was improper under Evidence Code section 1101, subdivision (a). An affirmative answer to the question whether defendant was drunk when he committed battery in the past would be relevant to show it was likely defendant was drunk at the time he resisted the rangers in this case and in turn would lend support to the rangers assessment that defendant was drunk on this occasion contrary to defendants claim of sobriety. This would be a classic violation of the prohibition against propensity evidence, an area of evidence restricted by the application of section 1101. We also conclude, however, that the error was harmless. Unlike Wagner, where the prosecutor asked the defendant a series of pointed questions regarding his role in the drug trade in Alaska, this case involves a single question and a negative response. The trial courts admonition cured the error.
III.
Prosecutorial Misconduct
Defendant maintains the prosecutor committed misconduct during closing argument by improperly inserting considerations of punishment into the jury deliberations, misstating the evidence and referring to facts not in evidence. We disagree.
"In general, a prosecutor commits misconduct by the use of deceptive or reprehensible methods to persuade either the court or the jury. [Citations.] But the defendant need not show that the prosecutor acted in bad faith or with appreciation for the wrongfulness of the conduct, nor is a claim of prosecutorial misconduct defeated by a showing of the prosecutors subjective good faith. [Citation.]" (People v. Price (1991) 1 Cal.4th 324, 447.) "The relevant question is whether the prosecutors comments `so infected the trial with unfairness as to make the resulting conviction a denial of due process. [Citation.]" (Darden v. Wainwright (1986) 477 U.S. 168, 181 [91 L.Ed.2d 144, 157.)
A. Reference To Punishment :
At the start of her closing argument, the prosecutor stated: "[I] want to say to all of you that we are all sympathetic to Mr. Duggers [plight]. Hes a member of your community. Hes homeless. He has a drinking problem, and I share that sense of sadness that somebody in our community is faced with this circumstance, and you have a job to do, and your job in this matter is to determine whether Mr. Dugger has broken the law. And at the beginning of this [the] jury came together into this case. We talked a lot about whether we could put [your] preconceived notions aside, whether we would be able to look only at the facts and only at the law in assessing Mr. Duggers guilt or innocence, so I start by reminding you of that commitment, the commitment that you made as a juror in this case to put whatever feelings that you have in a sympathetic nature aside, and evaluate the case on its [sic] merits. And I havent ever done this before in an argument or in a case, but I would advise you if you are concerned about the outcome of the case, or any penalty or punishment, if any is applied to Mr. Dugger that you write a letter to the Court. You can come to the judgment and sentencing, you can write me a letter, you can make your feelings known at the proper place and time regarding what you think the outcome of the case should be in terms of punishment and that sort of thing, if any." (Italics added.)
The court sustained defense counsels objection and immediately admonished the jury saying, "Ladies and gentlemen I will instruct you at a later time that you are not to consider punishment in any way. What counsel has said to you is correct in terms of procedure. If at a later time you wish to express your point of view on that you may, but in terms of your responsibility to deliberate on the evidence, that is not a consideration." The court repeated its admonition in the jury instructions following closing argument: "In your deliberations do not discuss or consider the subject of penalty or punishment. That subject must not in any way effect [sic] your verdict."
"A defendants possible punishment is not a proper matter for jury consideration." (People v. Holt (1984) 37 Cal.3d 436, 458.) Here, the prosecutors comments did not direct the jury to consider punishment. To the contrary, the prosecutor, recognizing that the jury might be sympathetic to the defendants circumstances, sought to remind the jury of their role as fact finders. The point of the prosecutors argument was that the prospect of punishment if defendant were convicted must not play any role in the jurys decision-making process as to whether to convict or acquit him. In effect, the prosecutor was saying what the trial court ultimately said when it instructed the jurors that they were not to consider punishment in any way and that the "subject [of punishment] must not in any way [a]ffect your verdict." In sum, the prosecutors argument was not misconduct.
B. Reference To Complaints Received By The Rangers:
The prosecutor argued in closing that the rangers were performing their duties when they contacted defendant on the bike trail. The following exchange took place:
"[PROSECUTOR:] But, as Ranger Safford told us, not only were they concerned for their own safety, but because of the context of the contact that they had, these complaints that Mr. Dugger is out of control, and berserk, and hes armed with this large knife that these officers
"[DEFENSE COUNSEL:] Objection misstates the evidence.
"THE COURT: Overruled. Ladies and gentlemen, the counsel will respectively be describing the evidence from their own perspectives. Theyre both doing it in good faith. Its up to you ultimately to decide what the evidence is and what you conclude the facts support."
Defendant contends the prosecutor "not only misstated evidence regarding citizen complaints that led the rangers to the bike trail on the evening of [defendants] arrest, she characterized the ambiguous testimony of the rangers in such a way that it misled the jury as to the actual facts, which the prosecutor well knew."
A review of the record shows that the prosecutor misstated the evidence. The rangers did not testify that they were following up on "complaints" that specifically referred to defendant, described anyone as "out of control" or "berserk," or mentioned a knife. However, we conclude the challenged statement did not establish a pattern that "`so infected the trial with unfairness as to make the resulting conviction a denial of due process. [Citation.]" (Darden v. Wainwright, supra, 477 U.S. at p. 181 .) The court cured any prejudice with its immediate admonition and later instruction that "[s]tatements made by the attorneys during the trial are not evidence." We presume that the jury understood and adhered to those instructions. (See, e.g., People v. Holt (1997) 15 Cal.4th 619, 662.)
C. Reference to Absence of Stun Guns:
The prosecutor challenged defendants testimony that McElheney "shocked him with some kind of electrical instrument." She argued that, "[t]here wasnt any other evidence that these officers even carry stun guns or anything of that nature, and you can bet your life that [defense counsel] would have asked them if [she] thought they did. They dont even carry that kind of equipment. Mr. Dugger was not attacked with an electrical object, its not true. Hes embellishing, trying to make it look like these officers attacked him, trying to show that he was the victim instead of the aggressor, and I think thats one of the most stark lies he told while on the witness stand." Defense counsel did not object to the prosecutors argument.
On appeal, defendant maintains the prosecutor committed misconduct by alluding to facts not in evidence to discredit defendants testimony and interject her personal opinion regarding defendants credibility. Defendant forfeited this claim of prosecutorial misconduct by failing to object and request admonishment at trial. (Ayala, supra, 23 Cal.4th at p. 284; People v. Samayoa (1997) 15 Cal.4th 795, 841.) However, we consider the merits of defendants argument to forestall the claim that defendant received ineffective assistance of counsel. (People v. Cox (1991) 53 Cal.3d 618, 682.)
We reject defendants argument for three reasons. First, the prosecutors statement that there was no evidence that the rangers carried stun guns was not a substantial misstatement. Ranger McElheney testified that both rangers carried guns but neither drew his gun during the encounter with defendant. The prosecutor could have interpreted McElheneys testimony to mean that the rangers carried regular guns, but not stun guns.
Second, we reject the implicit argument that the statement the rangers did not carry stun guns "`"`so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process."" (Ayala, supra, 23 Cal.4th at pp. 283-284.) Defendants testimony raised the question whether the rangers, in fact, used a taser on defendant. Defense counsel addressed this question on cross-examination of Safford: "Did you use any type of taser gun or any other type of weapon on [defendant]?" Safford responded, "No." In light of this testimony, the secondary question whether the rangers carried stun guns was of little relevance.
Third, the prosecutor is entitled to comment on the veracity of defendants testimony. (Dubria v. Smith (9th Cir. 2000) 224 F.3d 995, 1004; People v. Mora (1956) 139 Cal.App.2d 266, 272-273.)
IV.
Jury Instructions
Defendant argues the court erred by failing to instruct the jury on specific intent and unanimity. We address each argument in turn.
A. Specific Intent:
Counts four and five charged defendant with "unlawfully attempt[ing] by means of threats and violence to deter and prevent" the rangers from performing their duties and "knowingly resist[ing] by the use of force and violence" the rangers in the performance of their duties in violation of section 69. The court instructed the jury on the first prong of section 69 (attempt), omitting any reference to the second prong (resisting). In discussions with counsel on jury instructions, the court observed that "[a]ll of the offenses charged [were] general intent crimes," and did not instruct the jury on specific intent. The jury nonetheless found defendant guilty of both prongs of section 69.
Section 69 provides: "Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment."
CALJIC No. 7.50 (July 2004 ed.) reads in its entirety:
"[Defendant is accused [in Count[s] ____] of having violated § 69 of the Penal Code, a crime.]
"Every person who willfully [and unlawfully] attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon that officer by law, or who knowingly resists, by the use of force or violence, an executive officer in the performance of his or her duty, is guilty of a violation of Penal Code § 69, a crime.
"An `executive officer is a public employee whose lawful activities are in the exercise of a part of the sovereign power of the governmental entity employer, and whose duties are discretionary, in whole or in part. Any employee charged with the responsibility of enforcing the law is an executive officer.
"In order to prove this crime, each of the following elements must be proved:
"[1. A person willfully [and unlawfully] attempted to deter or prevent an executive officer from performing any duty imposed upon that officer by law; and
"2. The attempt was accomplished by means of any threat or violence.]
"[1. A person knowingly [and unlawfully] resisted an executive officer in the performance of his or her duty; and
"2. The resistance was accomplished by means of force or violence.]" The court in this case omitted the second set of elements.
Defendant asserts that the court erred in failing to instruct the jury on specific intent as it relates to the first prong of section 69. He stresses the importance of the issue in this case because voluntary intoxication negates specific intent in some circumstances. (See People v. Lopez (2005) 129 Cal.App.4th 1508, 1531 (Lopez).) We conclude the error was harmless.
A violation of the first prong of section 69 "requires a specific intent to interfere with the executive officers performance of his duties . . . ." (People v. Gutierrez (2002) 28 Cal.4th 1083, 1153 (Gutierrez); see Lopez, supra, 129 Cal.App.4th at p. 1530.) Failure to instruct the jury on an element of the charged offense, thereby relieving the prosecution of its burden to prove each element beyond a reasonable doubt, "violates the defendants rights under both the United States and California Constitutions." (People v. Flood (1998) 18 Cal.4th 470, 479-480 (Flood).) Reversal is required unless the prosecution can show the error was harmless beyond a reasonable doubt. (Gutierrez, supra, at p. 1154; Flood, supra, at pp. 502-504.)
The record shows that the prosecution relied on evidence that defendant actually resisted the rangers in violation of the second prong of section 69. The focus of the evidence was defendants actual resistance to and physical struggle with the rangers who were trying to arrest him. Defendants initial verbal challenge to the rangers authority and orders to depart the scene — "[Y]ou have no jurisdiction," "I dont have to listen to you," and "I dont have to leave" — quickly escalated into physical resistance when defendant reached for the shovel handle and began swinging the metal pipe. When McElheney pinned defendant to the ground and Safford threw the knife out of defendants reach, defendant continued to yell, kick and flail his arm. Defendant kicked and grabbed when the rangers checked him for weapons. His aggressive behavior towards the rangers continued at the jail. The jail deputies subdued defendant with leg restraints and a spit mask.
Based on this evidence, the prosecutor argued to the jury in closing that defendant resisted physically and verbally throughout his contact with the rangers on the bike path and at the jail. She referred to all the charged crimes, including section 69, as general intent crimes and expressly argued that defendants drunkenness was not a defense to a general intent crime. Defense counsel made no reference in her closing argument to the two prongs of section 69, specific intent, or that defendant was raising voluntary intoxication as a defense. Nor did Defense counsel request CALJIC No. 4.21 (voluntary intoxication — when relevant to specific intent); she merely denied defendants conduct as described by the rangers and argued he was entitled to resist the rangers use of excessive force.
The court was required to instruct on all the elements of section 69, and the trial court erred in failing to instruct on specific intent. The error potentially prevented the jury from deciding an essential element of the crime, thereby violating the defendants due process rights. ( Flood, supra, 18 Cal.4th at pp. 502-503.) At the same time, the courts failure to instruct on an element of the crime does not "affect the content of the record and does not impair our ability to evaluate the error in light of the record." (Id. at pp. 503-504, citing Rose v. Clark (1986) 478 U.S. 570, 579, fn. 7 [92 L.Ed.2d 460, 472].) Based on this record, we conclude defendant suffered no prejudice because the evidence of defendants verbal responses to and physical struggle with the rangers reflects defendants clear and specific intent to prevent the rangers from performing their duties. We conclude the error in failing to instruct on specific intent was harmless beyond a reasonable doubt. (Gutierrez, supra, 28 Cal.4th at p. 1154; Flood, supra, 18 Cal.4th at p. 504.)
B. Unanimity:
Defendant also contends the court erred in failing to give a unanimity instruction because the conduct underlying the charged offenses consisted of multiple acts which were interrupted by defendants transport to jail. We conclude there was no error.
CALJIC No. 17.01 (July 2004 ed.) instructs the jury: "The defendant is accused of having committed the crime of ____ [in Count ____]. The prosecution has introduced evidence for the purpose of showing that there is more than one [act] [or] [omission] upon which a conviction [on Count ____] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] [she] committed any one or more of the [acts] [or] [omissions]. However, in order to return a verdict of guilty [to Count ____], all jurors must agree that [he] [she] committed the same [act] [or] [omission] [or] [acts] [or] [omissions]. It is not necessary that the particular [act] [or] [omission] agreed upon be stated in your verdict."
A unanimity instruction is generally required where the evidence shows that more than one act could constitute the charged offense and the prosecutor does not elect to rely on any one act. (People v. Diedrich (1982) 31 Cal.3d 263, 280 (Diedrich ); People v. Haynes (1998) 61 Cal.App.4th 1282, 1294-1295; CALJIC No. 17.01.) However, the unanimity instruction is not required when the alleged offenses are so closely connected in time as to form part of one transaction. This continuous course of conduct rule also applies when "the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them." (People v. Stankewitz (1990) 51 Cal.3d 72, 100; see Diedrich, supra, 31 Cal.3d at p. 282.) "Similarly, when a prosecutor elects to rely on multiple acts in a continuous course of conduct as one crime, no unanimity instruction is required." (People v. Lopez (2005) 129 Cal.App.4th 1508, 1533-1534.)
In this case, the prosecutor made clear from her opening statement that she intended to rely on evidence of defendants continuous course of aggressive conduct to convict defendant of resisting the rangers. After describing the manner in which the rangers approached defendant and his companions, and the fact that two members of the group "just walked away," the prosecutor stated, "Mr. Dugger on the other hand was belligerent, and angry, and volatile from the moment that the park rangers made contact with them." She outlined evidence to show defendant resisted the rangers on the bike path and at the jail. With respect to defendants conduct at the jail, the prosecutor stated, "During that whole time Mr. Dugger was belligerent and uncooperative. He used his physical, all of his physical strength to resist the officers, keeping them, attempting to fight them, struggling with them. At one point grabbing Officer McElheney, and luckily in this particular instance nobody was injured."
The prosecutor summarized the theme that defendants actions were a continuous course of conduct during closing argument, clearly demonstrating that this was her theory of the case. She argued that, "Mr. Dugger was, throughout the contact with the officers, flailing about, resisting them both physically and verbally, swearing at them, et cetera." (Italics added.) The prosecutor continued: "[T]here was a confrontation out on the bike trail, that last[ed] three minutes, . . . then he was transported to the jail and continue[d] to resist, continue[d] to fight with the officers, and continue[d] to be belligerent verbally with them, shouting at them, kicking at the officers, attempting to bit Officer McElheney." (Italics added.)
Nothing in defense counsels rebuttal suggests the prosecution was operating under a different theory. Defendants defense was a total denial of the acts alleged to involve resisting the rangers in the performance of their duties. Given this record, we conclude the court was not required to instruct the jury on unanimity.
V.
Cumulative Error
Based on this record we conclude that, "the errors or potential errors, singly or in combination, were harmless under any applicable standard and did not render defendants trial fundamentally unfair." (People v. Davis (2005) 36 Cal.4th 510, 573.)
DISPOSITION
The judgment is affirmed.
We concur:
SCOTLAND, P.J.
SIMS, J.