Opinion
B157881.
7-30-2003
THE PEOPLE, Plaintiff and Respondent, v. RAWLE FORDE, Defendant and Appellant.
Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Marc E. Turchin and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
Rawle Forde appeals from the judgment entered following a jury trial resulting in his convictions of two counts of assault by means of force likely to produce great bodily injury and with a deadly weapon with a finding of the infliction of great bodily injury (Pen. Code, §§ 245, subd. (a)(1), 12022.7 , subd. (a)) and of misdemeanor battery (§ 242). The court sentenced him to an aggregate term of six years in state prison.
All further statutory references are to the Penal Code, unless otherwise specified.
On appeal, he contends that prosecutorial misconduct denied him due process and a fair trial because the prosecutor (1) violated his statutory duty to provide discovery, (2) suppressed evidence pursuant to Brady v. Maryland (1963) 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, (3) exceeded the trial courts exclusionary order and improperly misled the jury during final argument with regard to appellant being the suspect in a prior unrelated assault, and (4) made deceptive misrepresentations to the trial court and trial counsel that led the trial court to admit evidence that the employees had cause for a detention when there was none.
We reject the contention and affirm the judgment.
FACTS AND PROCEDURAL HISTORY
1. Trial Proceedings
A. The Peoples Case-in-chief
Viewed in accordance with the usual rule of appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11, 971 P.2d 618), the evidence established that at approximately 8:00 a.m. on February 5, 2001, Amtrak supervisor Michael Stewart was working at the Amtrak services kiosk inside Union Station in Los Angeles. Stewart saw appellant walking through the station. Stewart recognized appellant from a prior unrelated incident. In an excited voice, he used Amtraks public address system to call for Union Station security guards.
Appellant approached Stewart at the desk. Appellant waved his hands in front of Stewart and said Stewarts "mother was a whore." Appellant ran out of the station through the south doors and westbound through the Union Station parking lot toward Alameda Street.
Wayne Stovall, a chief inspector for the Amtrak Office of Inspector General and a federal peace officer, saw appellant waving his arms at the kiosk. Stovall saw something in appellants hand that glinted in the light; he concluded that appellant had a sharp instrument in his hand resembling a knife. Stovall saw two uniformed Union Station security guards pursue appellant outside. He rushed to Stewart, who was by then at the south doors. Stewart told him that "there were problems" with appellant. Stovall joined the pursuit. Stewart yelled to appellant that Stovall was a law enforcement officer and ordered appellant to stop. The employees pursuing appellant were unarmed.
The People never attempted to establish that Stovall was a "peace officer" within the meaning of the Penal Code. (See Pen. Code, §§ 830 et seq.)
As Stovall ran, he observed that appellant was confronted by the two uniformed Union Station security guards. Security guard Jorge Arias testified that he reached for appellant to prevent him from running into traffic and touched appellants shoulder. Arias said that appellant stopped, turned, and swung with his left arm at Arias. Arias lunged backwards to avoid being cut across the throat, and appellant grazed him on the chin with a knife he had in his hand. Arias started bleeding. Appellant ran to Alameda Street with Stewart, Stovall, and two security guards in pursuit.
At Alameda Street, Stovall was within an arms reach of appellant and yelling that appellant should "Stop." Appellant turned and swung at Stovall, punching Stovall hard in the right shoulder. Stovall later realized that appellant had stabbed him with that blow. Stovall pursued appellant southbound along the west side of Alameda Street to a freeway onramp. On the onramp, appellant swung at Stovall again and missed, and Stovall landed a punch. Stovall then tackled and punched appellant. There was a struggle during which appellant repeatedly threatened to kill Stovall. Stewart grabbed appellant to detain him and to prevent appellant from injuring Stovall. In the struggle, appellant stabbed Stovall several more times and kicked Stovall with his tennis shoes, which had wires protruding from them. The wires shredded Stovalls clothing.
Los Angeles police officers arrived and arrested appellant. A buck knife with a two- to three-inch blade was taken from appellant. It took four to five officers to subdue and handcuff appellant. Stovall was transported to the hospital. He had five cuts to his shoulder, shoulder blade, ribs, lower leg, and hand. He had four knife wounds requiring sutures. He missed work as a result of his injuries, and he had no strength in one arm for three to four weeks.
B. The Defense
Appellant did not testify in his defense.
John Elliot, a Department of Water and Power employee, testified that from his office window he saw appellant running "full speed" on Alameda Street with two men in pursuit. He telephoned 911. One of the pursuers tackled appellant, bringing him face down to the ground, and then the other pursuer grabbed appellant. The man who tackled appellant "rained blows upon him" or "beat[] the h___ out of him," and the second pursuer also hit him.
Los Angeles Police Officer Anna Garza testified that she and her partner arrived at the freeway onramp and found appellant on the ground fighting, kicking, and flailing in an effort to escape the men who had him pinned to the ground. According to Officer Ralph Bassett, who interviewed Stovall after the incident, Stovall said that he sustained all the stab wounds in one episode after he tackled appellant. Bassetts partner, Officer Andrew Hwang, interviewed security guards Arias and Alfred Flores. Flores said that he saw appellant strike Arias in the chin, but he did not see a knife.
In final argument, appellants counsel argued that appellant was acting in lawful self-defense. Counsel further argued that the People had failed to prove that appellant was guilty beyond a reasonable doubt based on a number of inconsistencies in the witnesses pretrial statements and trial testimony.
2. Discovery Proceedings and Argument as to the Uncharged Jefferson Attack
Several months before February 5, 2001, appellant had attacked Amtrak supervisor Lavina Jefferson while she was working at Union Station. Jefferson had informed the other employees in Union Station about the attack.
Before trial, trial counsel filed a discovery motion pursuant to section 1054.1 requesting a list of the Peoples witnesses, "any exculpatory evidence," "relevant written or recorded statements of witnesses or reports of the statements of witnesses whom [the People intended] to call at trial . . . ," and "all police, arrest, and crime reports prepared by the People or their agents in relation to the investigation and prosecution of this case, including all reports made by the Los Angeles Police and the District Attorney investigators."
The People gave the defense a list of witnesses indicating that Jefferson would be a witness at the trial.
On Thursday, December 13, 2001, one day before trial commenced, the prosecutor filed a written motion requesting that the trial court admit the Jefferson attack as evidence of other crimes. (Evid. Code, § 1101, subd. (b).) The People claimed that the evidence was relevant to show appellants motive in wielding the knife and to rebut an anticipated claim of self-defense. The prosecutor also asserted that apart from its admissibility as evidence of other crimes, the attack on Jefferson was relevant to show the reason that the employees pursued appellant.
The trial court said that the evidence did not have to be admitted pursuant to Evidence Code section 1101, subdivision (b). The attack was admissible to give the jurors the total picture of the events and to explain the conduct by the employees.
Trial counsel told the trial court that the security guards made statements included within the arrest report indicating that they attempted to detain appellant because they recognized him as the person who had assaulted Jefferson. However, trial counsel argued that because neither he nor the prosecutor knew any of the details of the prior assault, no determination of the admissibility of the evidence was possible.
Over the prosecutors objection, the court deferred its ruling on the admissibility of the evidence until Jefferson arrived in court. The trial court indicated to the prosecutor that there was no issue of self-defense because appellant was not justified in assaulting the employees merely because they approached him. It told the prosecutor that until they had an Evidence Code section 402 hearing, the People were limited to eliciting evidence that the employees saw appellant and approached him with respect to "an unrelated investigation."
On Friday afternoon, December 14, 2001, trial counsel complained about a lack of statutory discovery, including a complaint that he had no discovery about the Jefferson incident. The prosecutor replied that trial counsel had investigators who were available to interview Jefferson. Further, trial counsel had the opportunity on November 13, 2001, to interview Jefferson in the courtroom but had failed to do so.
Trial counsel claimed that the prosecutor was delaying his interview of the witness so that there was no discovery. He told the trial court, "So my position is the longer they wait to give me discovery on the [Evidence Code section] 1101, the less time Im going to have to prepare and the more reason [the evidence] should be excluded."
The prosecutor protested that there was nothing to discover as he had been told there were no police or internal reports for the incident. There were no statements regarding the witness as no one took notes in speaking to Jefferson, and the People had met all their section 1054.1 obligations with regard to the Jefferson incident.
The trial court asked if Jefferson would be in court on the following Monday, and the prosecutor indicated yes. The trial court also inquired if over the weekend, the prosecutor would get together with or initiate a three-way telephone conversation with trial counsel and Jefferson. The prosecutor agreed.
On Monday, December 17, 2001, trial testimony commenced, and trial counsel made no further complaint of a lack of discovery. Stewart testified in conformity with the trial courts ruling that he saw appellant walking in Union Station. He said that he had called security as a result of having seen appellant previously in connection with an unrelated incident. During the trial, Jefferson did not testify. Out of the presence of the jury, the prosecutor renewed his request to admit into evidence a specific reference to the Jefferson attack. The prosecutor argued that if the defense was self-defense, the reason that the employees were chasing appellant was highly relevant to the issues in the case, and omitting that evidence left the door open for the defense to argue that the People had presented no justification for a detention.
The trial court told the prosecutor that presumably appellant was approached by a uniformed security guard. That was all the jury needed to know, and the trial court was deferring a ruling on the evidence until such time as there was something further for the jury to know.
On Wednesday, December 19, 2001, at the close of the defense case, the prosecutor again complained that the trial court had failed to admit the Jefferson incident to explain the reason for the pursuit.
Trial counsel commented that he had obtained discovery consisting of a police report for the Jefferson incident, as well as a written statement by Jefferson. In her written statement, Jefferson said that she had been "attacked" by appellant. However, the arrest report also indicated that appellant had already been arrested for the attack. Trial counsel argued that because appellant had previously been arrested for the attack, the employees had no reason to detain appellant.
Rejecting the defense claim, the trial court told trial counsel that after attacking Jefferson, appellant should not have returned to Union Station. He was a troublemaker, and the employees were pursuing him to see that he did not do anything of that nature again. Nevertheless, the trial court had exercised its discretion pursuant to Evidence Code section 352 and excluded the Jefferson incident. The trial court assured the prosecutor that "the jury is well aware of the fact that there was some condition precedent that precipitated all of this."
The trial court also commented, "Well, I can make it real clear what my reasoning behind [excluding the Jefferson incident] was. I think its kind of, to use that antiquated term res gestae, its kind of an aspect of this whole transaction that certainly was relevant for the jurys consideration, but it was my concern that since it is a prior bad act that it might taint the jurors. So I exercised my discretion, really bending over backwards in favor of the defense. And I know easily I could have gone either way with that, that arguably I should have even ruled in favor of its admissibility in view of its relevancy. [P] But just to make sure the defendant received a scrupulously fair trial which I try to do every time of course and should do, I excluded it and I would like not to get into that [during the trial evidence] because I dont want to give the jurors the impression that the defendant has a predisposition for violent behavior."
The trial court also said, "I want [appellant] to be judged on the basis of this particular transaction. [P] So I think we have an understanding here thats fundamental as to how we will proceed and that is that the defense is not going to argue that it was completely gratuitous that the security guards chased [appellant] because after all that would fly in the face of the evidence thus far and so you [the prosecutor] need not be concerned about that."
According to the trial courts comments, after the trial court excluded the Jefferson attack, the parties and the trial court had reached an understanding: the defense would not argue to the jury that the detention was for no good reason, and the prosecutor did not need to elaborate further on the cause for detention.
During their discussion, the prosecutor stated his frustration with the courts refusal to permit him to use the employees conclusions that appellant was wanted for Jeffersons assault. The trial court reiterated its view that the only critical issue in the case was whether appellant had used deadly force in the face of nondeadly force when the employees approached him. The trial court insisted that the citizen-peace officer status of the employees was of no consequence. Further, the jury knew all that was necessary when it was told that the employees sought to detain appellant due to a prior unrelated incident.
During final argument, the prosecutor urged that appellant was not acting in self-defense. Commenting on the trial courts jury instructions, the prosecutor explained that an assault with a fist does not justify the use of deadly weapon in defense unless the person reasonably believes the assault upon him is likely to inflict great bodily injury. The prosecutor said, "So in other words the defendant had to even though he knows hes being sought after for a prior incident. Even though he has a knife in his hand, even though no one else is armed. You have to say of course hes going to stab somebody." (Emphasis added.) He also commented that a plea of self-defense cannot be contrived and said, "Thats absolutely what he did. He was wanted for a prior, unrelated incident and he stabs somebody and he stabs another person." (Emphasis added.)
At the sidebar, trial counsel objected that the prosecutors comments overstepped the trial courts exclusion order. Trial counsel moved for a mistrial on grounds it was prosecutorial misconduct to mislead the jury. Trial counsel again argued that the arrest report indicated that appellant was previously arrested for the incident; thus, the previous incident provided no basis for the employees to detain appellant. Trial counsel also told the trial court that he did not think that any admonition by the trial court would cure the prejudice that flowed from the improper comments.
The trial court ordered the prosecutor not to comment on the detention in that way again. The trial court told the prosecutor that the important issue in the case was appellants use of deadly force in the face of nondeadly force. The prosecutor protested that he was entitled to present evidence about the reason that the employees were chasing appellant. The trial court disputed that point. The prosecutor continued to protest, then told the trial court that he would move on with his argument.
Thereafter, trial counsel objected to a display board the prosecutor was using to illustrate his comments. The display board listed the "prior unrelated incident" as one reason that appellant was not acting in self-defense. The trial court overruled trial counsels objection to the display.
During deliberations, the jury submitted the following questions to the trial court: (1) "Is a suspect of a crime afforded the same rights under [CALJIC No.] 5.30 in self-defense, particularly when the suspect has been observed in an assault with a deadly weapon and is attempting to flee?"; (2) "Who has the burden of proof of self-defense, the defense or the prosecution?"; (3) "Does tackling a fleeing suspect[] constitute assault?"; and (4) "What is unlawful in the context of the definition of assault?" The trial court replied to the questions after conferring with counsel. The trial court instructed the jury as to self-defense. It did not instruct as to the rights a citizen has to detain and to arrest another person and the degree of force that may be employed in making an arrest or detention.
DISCUSSION
Appellant contends that he was denied a fair trial and due process because the prosecutor failed to ascertain the true facts about the Jefferson incident, violated his duty to inform the defense of material exculpatory evidence regarding the Jefferson incident, misrepresented the true facts about the incident to the trial court and trial counsel, and argued the false facts to the jury.
We reject these contentions.
1. Applicable Law
A. Prosecutorial Misconduct
"The applicable federal and state standards regarding prosecutorial misconduct are well established. "A prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process."" [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ""the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."" [Citation.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion — and on the same ground — the defendant [requested] an assignment of misconduct and [also] requested that the jury be admonished to disregard the impropriety. [Citation.] 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." (People v. Ochoa (1998) 19 Cal.4th 353, 427, 966 P.2d 442, quoting from People v. Samayoa (1997) 15 Cal.4th 795, 841, 938 P.2d 2; accord, Darden v. Wainwright (1986) 477 U.S. 168, 181, 91 L. Ed. 2d 144, 106 S. Ct. 2464 [stating the federal standard].)
B. Brady v. Maryland
Pursuant toBrady v. Maryland, supra, 373 U.S. at page 87 (Brady), the prosecution must disclose to the defense any evidence that is "favorable to the accused" if it is "material" on the issue of guilt or punishment. A failure to disclose violates the defendants right to due process. (Id. at pp. 86-87.) Evidence is material if there is a reasonable probability of a different result. (Kyles v. Whitley (1995) 514 U.S. 419, 432, 131 L. Ed. 2d 490, 115 S. Ct. 1555; United States v. Bagley (1985) 473 U.S. 667, 678, 87 L. Ed. 2d 481, 105 S. Ct. 3375.) The question is whether, in the absence of undisclosed evidence, the defendant "received a fair trial, understood as a trial resulting in a verdict worthy of confidence. [Citation.]" (In re Brown (1998) 17 Cal.4th 873, 886, 952 P.2d 715.)
Brady and its progeny establish a duty on the part of the prosecution, even in the absence of a request therefore, to disclose all substantial material evidence favorable to an accused, whether such evidence relates directly to the question of guilt, to matters relevant to punishment, or to the credibility of a material witness. (Strickler v. Greene (1999) 527 U.S. 263, 280-281, 144 L. Ed. 2d 286, 119 S. Ct. 1936; Giglio v. United States (1972) 405 U.S. 150, 153-154, 31 L. Ed. 2d 104, 92 S. Ct. 763.) "In order to comply with Brady, therefore, the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the governments behalf in this case, including the police." (Strickler v. Greene, supra, at p. 281, quoting from Kyles v. Whitley, supra, at p. 437.)
"There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." (Strickler v. Greene, supra, 527 U.S. at pp. 281-282.)
Under Brady, it is irrelevant if the prosecutorial failure is intentional, negligent, or inadvertent. (People v. Ruthford (1975) 14 Cal.3d 399, 406, 121 Cal. Rptr. 261, 534 P.2d 1341.)
C. Presentation of False Testimony
"[A] conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." (United States v. Agurs (1976) 427 U.S. 97, 103, fns. omitted, 49 L. Ed. 2d 342, 96 S. Ct. 2392.) The same principle applies when the prosecution should have known that the testimony was perjured. (Giglio v. United States , supra, 405 U.S. at p. 154.)
D. Standard for Reversal for a Failure to Disclose Evidence Under the Discovery Statutes
Section 1054.5, subdivision (b), provides in pertinent part that "before a party may seek court enforcement of any of the disclosures required by this chapter, the party shall make an informal request of opposing counsel for the desired materials and information. If within 15 days the opposing counsel fails to provide the materials and information requested, the party may seek a court order. Upon a showing that a party has not complied with Section 1054.1 or 1054.3 and upon a showing that the moving party has complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this chapter . . . ."
To obtain sanctions for the Peoples failure to disclose during informal discovery pursuant to section 1054.1, the defense must request sanctions as is required in section 1054.5. These sanctions, however, are available only prior to the close of testimony and for so long as the trial court has jurisdiction over the criminal case. After conviction, and barring circumstances not present in this case, any discovery violation is measured by a posttrial standard. (People v. Bohannon (2000) 82 Cal.App.4th 798, 805.) To obtain reversal of a conviction for a discovery violation posttrial where there is no preconviction request for sanctions, the discovery violation must amount to a violation of Brady. (Ibid.)
2. The Arrest Report for the Jefferson Incident
Appellant claims that Brady requires a reversal as the prosecutor failed give him pretrial discovery of the arrest report for the Jefferson incident. He concedes that there is no statutory violation as he did not seek sanctions pursuant to section 1054.5 during trial for the failure to disclose. (People v. Bohannon, supra , 82 Cal.App.4th at p. 805.) However, he claims that the arrest report constituted "favorable evidence," and there is a reasonable probability that if the evidence had been disclosed, the result of the proceedings would have been different. (Id. at pp. 805-806.) The claim has no merit.
Appellants claim blurs the distinction between appellants statutory rights to reciprocal discovery and the disclosure required by Brady. The prosecutors duties of disclosure under the due process clause are wholly independent of any statutory scheme for reciprocal discovery. (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 378, 285 Cal. Rptr. 231, 815 P.2d 304.) The record shows that appellant obtained the statutory discovery he sought. Following disclosure of the arrest report, he did not ask the trial court for further sanctions. His statutory remedies for nondisclosure must be pursued in the trial court, and here the record shows that his discovery request was satisfied and he raised no further complaint about discovery. (People v. Bohannon, supra, 82 Cal.App.4th at p. 805.)
Further, to the extent that appellant argues that Brady requires a reversal, we find no Brady violation arises from a nondisclosure of the arrest report. Apart from the fact that the Jefferson attack was not material and favorable evidence, "where the prosecution delays disclosure of evidence, but the evidence is nonetheless disclosed during trial, Brady is not violated." (U.S. v. Gonzales (8th Cir. 1996) 90 F.3d 1363, 1368; accord, People v. Jenkins (2000) 22 Cal.4th 900, 950-952, 997 P.2d 1044; People v. Wright (1985) 39 Cal.3d 576, 591, 217 Cal. Rptr. 212, 703 P.2d 1106.) Appellant makes no claim that the delay in disclosure of the arrest report affected his defense. (U.S. v. Devin (1st Cir. 1990) 918 F.2d 280, 290 [in cases of delayed disclosure, a trial courts principal concern must be whether learning the information altered the subsequent defense strategy, and whether, given a timely disclosure, a more effective strategy would likely have resulted].)
3. Suppression of Evidence
Appellant also makes a claim that pursuant to Brady, evidence of the Jefferson incident was favorable to the defense, and the prosecution had a duty to disclose the details of that incident to appellant prior to trial. The claim can be disposed of at the threshold, and in any event, it lacks merit.
The prosecutor had no obligation to disclose evidence available to the defense from other sources or evidence in appellants possession. (See U.S. v. Jones (8th Cir. 1994) 34 F.3d 596, 600.) Jefferson was available to the defense for interview prior to trial. Interviewing Jefferson would have revealed to the defense the date and details of the prior incident and led trial counsel to discover that there was an arrest report for the incident. Trial counsel also had access to his client, who was well aware that he was arrested on the prior occasion. Thus, the details of the prior incident were available to trial counsel by use of his own resources well before trial.
Moreover, the Jefferson incident was not material. As the trial court observed, regardless of the employees subjective reasons for detaining appellant, objectively the employees had ample reason to detain appellant to see that he did not engage in further assaultive conduct and to have a peace officer advise him that he was not welcome on the premises as the predicate for a later arrest for trespass. (See §§ 837, subd. 1 [authorizing an arrest for a misdemeanor], 459 [entering a public building with the intent to commit a felony therein], 602, subd. (s) [trespass by violent offender on private property open to the public after advisement by a peace officer], 647, subd. (e) [lingering for the purposes of committing a crime as the opportunity may be discovered]. )
Before the employees had an opportunity to detain appellant, appellant cut Arias with his knife, thereby committing a felony. Thus, even if the employees had effected a detention (and it appears they did not), appellant was not justified in using a knife with a two- to three-inch blade to resist being detained. (See People v. Curtis (1969) 70 Cal.2d 347, 351, 74 Cal. Rptr. 713, 450 P.2d 33 [even if appellant is justified in resisting an unlawful detention, at best, he can use only reasonable force.) A citizen may arrest another if a felony has in fact been committed and he has reasonable cause to believe that the person to be arrested committed it. (§ 837, subd. 3; People v. Fosselman (1983) 33 Cal.3d 572, 579, 189 Cal. Rptr. 855, 659 P.2d 1144 [a citizen may arrest another if a felony has in fact been committed and he has reasonable cause to believe that the person to be arrested committed it; the citizen may use reasonable force to effect the arrest]; see People v. Crowder (1982) 136 Cal. App. 3d 841, 844, 186 Cal. Rptr. 469 [security guards working for private employers have no more power to enforce the law than other private persons, and security guards have rights to detain and arrest pursuant to § 837].) "There is no right to defend against a valid [citizens] arrest." (People v. Fosselman, supra, at p. 579.)
Accordingly, the prosecution did not suppress material evidence that undermined the verdict within the meaning of Brady.
4. Final Argument to the Jury
We reject appellants claim that he was denied due process by the prosecutors remarks to the jury about the cause for a detention.
The claim is not cognizable on appeal. "As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion — and on the same ground — the defendant [requested] an assignment of misconduct and [also] requested that the jury be admonished to disregard the impropriety." (People v. Ochoa, supra , 19 Cal.4th at p. 427.) In this case, appellant objected to the remarks, but asked for no curative admonitions. In the trial court, he claimed that no admonition would cure the prejudice that flowed from the prosecutors remarks. We disagree. To determine whether an admonition would have been effective, we consider the statements in context. (People v. Edelbacher (1989) 47 Cal.3d 983, 1030, 254 Cal. Rptr. 586, 766 P.2d 1.) The prosecutors comments were so mild and isolated that an admonition by the trial court would have cured any error. Hence we must conclude that the claim is waived. (Ibid.)
Furthermore, even if the claim is addressed on its merits, the complained-of comments are insufficient to show a violation of due process. The prosecutors comment that appellant knew that he was being sought for another incident and his display board constituted fair comment on the evidence. (People v. Frye (1998) 18 Cal.4th 894, 975, 959 P.2d 183.) However, the remark that appellant was "wanted" for a prior unrelated incident violated the trial courts order excluding that evidence and misstated the evidence in the case — apparently appellant was previously arrested for the attack and thus was not "wanted" for its commission. However, the comment was so brief and mild that it does not rise to the level of ""a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.""" (People v. Ochoa , supra, 19 Cal.4th at p. 427.) Also, there was no use of deceptive or reprehensible methods to attempt to persuade the jury of guilt. Accordingly, we reject the claim of prosecutorial misconduct. (Ibid.)
The decision in People v. Purvis (1961) 56 Cal.2d 93, 13 Cal. Rptr. 801, 362 P.2d 713 does not require a reversal. In Purvis, the defendant was convicted of first degree murder. During the penalty phase of the trial, the trial court admitted inadmissible hearsay evidence from the victim and the defendants former wife regarding their fear of the defendant. The court limited the testimony to state of mind evidence, but the prosecutor nevertheless argued that the jury should consider the evidence for its truth. The Supreme Court reversed a verdict of death primarily because of the use of inadmissible hearsay that was highly prejudicial to the defendant, but mentioned that the prosecutor had capitalized on the evidence by asking the jury to consider the evidence for a purpose for which it was not admitted. (Id. at pp. 98-99.)
This case is not like People v. Purvis, supra, 56 Cal.2d 93. The primary reason for the reversal in Purvis was the Peoples misuse of the inadmissible and highly prejudicial evidence to secure the verdict of death. Here, there was no misuse of inadmissible and highly prejudicial evidence that improperly secured the verdict.
5. Other Prosecutorial Misconduct
Appellant asserts that the prosecutor engaged in "deceptive conduct" (1) by attempting to use the Jefferson incident when he was totally unaware of its details, (2) by representing that there was no discovery as to the incident, and (3) by seeking to use the incident as cause for a detention even after he had discovered the incidents true facts. His assertion has no merit.
Appellant argues that what occurred here is similar to the misconduct committed by the prosecutor in People v. Ruthford, supra, 14 Cal.3d 399 and that the prosecutor has an affirmative duty to avoid even unintentional deception and misrepresentations as explained by Imbler v. Craven (1969) 298 F. Supp. 795, 809 (Imbler). He urges that when the prosecutor obtained the arrest report for the Jefferson incident, he discovered that there was no factual basis for appellants detention. The prosecutor by his delay, negligence, and misrepresentations obtained an improper advantage over the defense, thereby obtaining the admission of false testimony that there was reason for the detention. He argues that the jury was misled by the reference to the incident. The jury deliberated over five and a half hours over two days in the case and posed questions to the trial court regarding the use of force. Appellant claims that he was innocent: all he did was walk though Union Station and leave of his own accord. Nevertheless, security personnel pursued and attempted to stop him. Arias attempted to effect an unlawful detention, and in self-defense, appellant cut Arias. Appellant asserts that whether his conduct was unreasonable in the circumstances presented a close case; thus, the prosecutors misconduct improperly tilted the scales of justice in favor of his conviction. This claim of misconduct also fails.
Overruled on unrelated grounds in In re Sassounian (1995) 9 Cal.4th 535, 545, 887 P.2d 527.
Affirmed sub nom. Imbler v. State of California (9th Cir. 1970) 424 F.2d 631, certiorari denied (1970) 400 U.S. 865, 27 L. Ed. 2d 104, 91 S. Ct. 100.
In People v. Rutherford, supra, 14 Cal.3d 399, the defendant was convicted of armed robbery. At trial, the identification evidence connecting appellant to the robbery was weak. The key prosecution testimony linking him to the robbery came from a friend of the defendants who was one of the two men who actually committed the robbery. Subsequent to the robbery, appellant and his wife had gone to Las Vegas with the robber/key prosecution witness and his wife. At trial, appellant gave exculpatory testimony: he claimed that he and his wife had merely gone to Las Vegas with the robber and his wife, and he had nothing to do with the robbery. After his conviction, the robber wrote him a letter informing him that the robber had testified against him because the prosecution had promised if the robber did so, the robbers wife would not have to serve a prison term. The defendant raised a claim that his conviction was secured by perjury. The trial court rejected the claim. On appeal, the California Supreme Court faulted the prosecutor for not spontaneously disclosing the inducements given to the key prosecution witness to testify against the defendant. The court reversed the defendants conviction, holding that the "suppression of substantial material evidence bearing on the credibility of a key prosecution witness is a denial of due process . . . ." (People v. Ruthford, supra, 14 Cal.3d at p. 408.)
The convictions in Imbler v. Craven, supra, 298 F. Supp. 795, Napue v. Illinois (1959) 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (Napue), and People v. Kasim (1997) 56 Cal.App.4th 1360 (Kasim) were reversed because the prosecutors failed to disclose before or during trial considerable inducements given to the prosecution witnesses to secure their testimony. Also, in Kasim, the prosecutor compounded a failure to disclose favorable evidence and the presentation of false testimony by arguing to the jury that the accomplice/prosecution witnesses were offered "no deals" when in fact the prosecutor apparently never contemplated prosecuting the accomplices for the same offense. Further, for one witness, the prosecutor personally had intervened allowing the witness to avoid deportation proceedings.
Here, there was no presentation of false testimony. In the discussions regarding discovery, it was apparent that the prosecutor had the case assigned to him on October 1, 2001, some 44 days before appellants complaints of no discovery. According to trial counsel, the prosecutor was scrambling to complete discovery that should have been supplied to trial counsel far earlier. In his comments about the Jefferson matter, the prosecutor indicated that he gave the defense more than 30 days notice of the proposed use of the Jefferson incident. The defense could have used an investigator to interview Jefferson. The prosecutor had not interviewed Jefferson, Jefferson told him that she never filed a police report and there was no internal incident report, and the prosecutor had provided to the defense everything required by section 1054.1. The trial court had the prosecutor speak to Jefferson over the weekend and make Jefferson available to the defense. The following Monday, after the prosecutor had interviewed Jefferson and obtained a handwritten statement from her for the defense, the prosecutor discovered there was an arrest report for the incident. As soon as the prosecutor discovered there was an arrest report, he secured and gave the report to trial counsel.
This case is not similar to Ruthford, Imbler, Napue, orKasim. The prosecution did not fail to disclose or employ material false evidence to secure appellants conviction. The prosecutor made no deceptive statements that misled the jury, trial counsel or the trial court to appellants detriment. As we explained earlier, a delay in discovery does not violate due process unless the delay affects a defendants ability to defend. The record shows that the delay in discovery was innocent, and the prosecutor believed there was no arrest report because he was told there was none. He disclosed it as soon as he discovered that the arrest report was in existence. No advantage was obtained by the prosecutor by delaying discovery. Apart from any erroneous belief the employees entertained that appellant was wanted for the Jefferson assault, the employees had ample reason to detain appellant.
Moreover, by law, appellant was not justified in using the knife to resist a lawful or an unlawful detention (if there was a detention) by slitting Ariass chin. Once appellant cut Arias, who lunged backwards to avoid a slit throat, appellant had committed a felony giving the employees cause for a citizens arrest. A person is not permitted to resist a lawful citizens arrest. Thus, the evidence never supported his claim of self-defense, and because he had no defense to the charges, he cannot show the prejudice necessary to establish a violation of due process.
6. Conclusion
We reject appellants claims that prosecutorial misconduct tainted the entire trial. The fashion in which the prosecutor and the trial court approached the case permitted appellant to urge the justification of self-defense when the evidence did not support such a defense. The prosecutor engaged in no misconduct that improperly secured the conviction, and the evidence overwhelmingly demonstrated guilt. Individually and collectively, the complained-of conduct did not violate due process or deprive appellant of a fair trial.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P.J., ASHMANN-GERST, J.