Opinion
F050895
4-28-2008
THE PEOPLE, Plaintiff and Respondent, v. JORGE FRANCISCO FREGOSO, Defendant and Appellant.
David Joseph Macher, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Following a jury trial, Jorge Francisco Fregoso was convicted of one count of premeditated murder (Pen. Code, § 187, subd. (a)) and one count of kidnapping (§ 207, subd. (a)). It was found true that both counts were committed for the benefit of a street gang (§ 186.22, subd (b)(1)); that Fregoso was a principal in the offense and at least one principal personally discharged a firearm causing great bodily injury (§ 12022.53, subds. (d) & (e)(1)); and that the murder was committed in the commission or attempted commission of a kidnapping (§ 190.2, subd. (a)(17)(B)). The trial court sentenced Fregoso to an indeterminate term of life without the possibility of parole and a term of 25 years to life.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, Fregoso claims: (1) Batson/Wheeler error occurred; (2) the trial court erred in allowing the prosecution to reopen its case; (3) the prosecutor committed prejudicial misconduct; (4) the stop and subsequent search of the vehicle was unconstitutional; and (5) cumulative error occurred. We find no prejudicial error and affirm.
Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.
FACTS
Fregoso, Jesus Valenzuela, Stephen Romero, and Julian Garza were all involved, in varying degrees, in the murder of Raul Ruiz. All four had Northern gang connections in Delano. Valenzuela, who was also known as "Noisy" or "Tavio," and Romero, also known as "Stevo," were both previously affiliated with the North Side Delano gang. Garza, who was also known as "Sleepy," was a member of the West Side Delano gang. Fregoso, also known as "Lil Casper," was a member of the Varrio Delano Locos gang.
Garza was Fregosos codefendant at trial. He has filed a separate appeal.
Valenzuela entered a plea to felony false imprisonment with a gang enhancement, and felony accessory to kidnapping, for a maximum term of up to seven years, on the condition that he testify truthfully in the instant trial. Romero pled guilty to two felony counts, with a gang enhancement, for a total term of seven years, on the condition that he testify truthfully in the instant case.
Valenzuela first saw Ruiz on the morning of August 28, 2005, when Ruiz drove by and Valenzuela asked him who he was looking for. Ruiz said he was looking for someone named Adrianna. Valenzuela and Ruiz "hung out" together, and, while in Ruizs car, Valenzuela smoked marijuana and Ruiz smoked methamphetamine until Ruiz, a Southern gang member, discovered that Valenzuela was a former Northern gang member. Both men then got out of the car, and Ruiz hit Valenzuela with a chain attached to his keys.
Valenzuela ran into the backyard of Vincent or "Vinnie" Martinezs house on Quincy Street, caught hold of Ruizs chain, and used the chain to pull Ruiz into the yard. When Martinez joined them, Ruiz stopped fighting and obeyed Valenzuelas demand that he sit down. Fifteen to 20 minutes later, Valenzuela asked Martinez if he could leave Ruiz where he was, and Valenzuela left.
At approximately 11:30 a.m. on August 28, 2005, police officer Rommel Bautista responded to a report of an assault with a weapon, a chain. On 13th Avenue, just north of Quincy Street, Bautista found a chain and some keys in the middle of the road. On Quincy Street, near Martinezs house, Bautista found a sleeveless white undershirt with bloodstains on it. In Martinezs backyard, Bautista saw a weight bench on top of some plywood on the ground.
Sometime that evening, Romero picked up Fregoso and took him to Martinezs house. Romero thought he was going to meet Valenzuela at the house to settle a dispute between the two of them, but Fregoso ordered Romero to park his car in reverse in the driveway.
At approximately 10:00 p.m., Valenzuela returned to Martinezs house and found Ruiz in a six-foot-deep pit in the backyard. Valenzuela saw Garza, who had arrived at some point, pull Ruiz out of the pit, hit him, and tie him up. Fregoso stood nearby.
Romero saw Valenzuela in an alley near the house. Fregoso said something about "having a little scrap pinned up in a hole," but Romero was more concerned about resolving his dispute with Valenzuela. Valenzuela then spoke to Romero in a friendly manner and asked for a ride home. Realizing that there was no dispute between the two of them, he agreed.
Romero got out of the car, looked between the cracks of the fence, and saw seven to nine people in the yard. He saw Garza take a person out of a pit and drop him on the ground. The mans arms and legs were tied behind his back, and he had a red shirt over his head. Fregoso and Garza kicked and beat the man all over his body and called him a "scrap," a derogatory term for a Southerner. The two told the man to say, "Fuck the South Side," and "Its all about the North," but the victim just moaned and mumbled a bit.
Either Garza or Fregoso took Ruiz to Romeros car. Garza ordered Romero to open the trunk and, when Romero was reluctant, Garza pointed a gun at his back and again told him to open the trunk. Ruiz was put into the trunk; after Fregoso got into the car, someone brought him a shovel and a pick.
Valenzuela asked Fregoso what he was going to do with Ruiz, and Fregoso said they were going to drop him off. Valenzuela saw a gun and "gardening tools" in the car.
Romero always kept a .22-caliber pistol "inside" the stereo of his car for protection. He thought about using it to get away from Fregoso and Garza, but decided it was too risky.
Fregoso told Romero to drive to a place on County Line Road. Garza suggested they leave the victim there, but Fregoso said they had to kill him to prevent him from "`tell[ing] the cops where Vinny lives."
Once they got to County Line Road, Fregoso directed Romero to a cornfield. There, Fregoso dragged Ruiz into the field. Garza and Valenzuela followed.
Romero stayed in the car and heard a gunshot, followed by screaming. Fregoso came out of the field. Romero heard a second gunshot, and the screaming stopped. Garza and Valenzuela then came out of the field. Garza handed the gun to Valenzuela and told him to go back and shoot Ruiz, but Valenzuela refused and handed the gun back to Garza.
According to Valenzuela, Fregoso shot the gun into the air and then shot Ruiz, who "just laid there." Fregoso handed the gun to Garza who shot Ruiz. When they returned from the cornfield, Garza gave the gun to Valenzuela, but he handed it back.
In the car Garza looked at Valenzuela, pointed the gun at him, and said, "`Well, I know you aint gonna say nothing." Valenzuela promised not to, and Garza said, "`Cause if you do, you know whats going to happen, right?" When Garza yelled at Valenzuela for not shooting Ruiz, Fregoso said, "`Well, it doesnt matter. Did you see how much blood he was losing? He is going to die anyways."
According to Romero, Garza said he shot Ruiz in the neck after Fregoso shot him. Fregoso was happy, bragging, and stated "`we earned our stripes," which meant either killing or beating a Southern gang member.
At approximately 1:10 a.m. on August 29, 2005, police officers Chris Adkins and Jesus Navarrete observed Romeros car at an intersection and thought it might be stolen or that the driver might be under the influence. Adkins turned on his overhead lights just as the vehicle pulled into a driveway on Oxford. Romero, in the drivers seat, Fregoso, in the front passenger seat, and Valenzuela, in the right rear passenger seat, got out of the car and fled. Adkins did not see anyone get out of the left rear seat.
Officer Adkins chased Romero but did not catch him. Adkins returned to his patrol car and noticed that all four doors of the suspect car were now open. Officer Navarrete chased and apprehended Fregoso. During the short chase, Navarrete lost sight of Fregoso for only a second or two.
A shovel, a pickax, a red tarp, and gloves were found in the back seat of the vehicle, as was a knife wedged behind the back of the rear seat. A .22-caliber pistol was found beneath a compartment in the center of the dash. A shotgun, which contained one spent casing, was found partially underneath the passenger seat along with a box of shotgun shells.
Romero decided, after jumping some fences and staying in a yard for awhile, to turn himself in because he knew the car would be traced back to him. He went to a convenience store and asked an employee to call the police.
Officers Robert Geivet and Madrigal contacted Romero at the store and determined that he was the driver of the vehicle. They transported him to a hospital for medical clearance. At the hospital, Romero waived his Miranda rights and told Officer Navarrete that he was forced at gunpoint to drive Fregoso, the victim, and another unnamed person out to a cornfield where Fregoso and the other person shot and killed the victim. According to Romero, Fregoso and another person took the victim, who had his hands tied, and put him in the trunk of Romeros car. When Romero expressed concern, the other person pointed a gun at him and ordered him to drive to a particular location. Once there, Fregoso and the other person decided he should drive to a cornfield, where they eventually shot the victim.
Miranda v. Arizona (1966) 384 U.S. 436.
At approximately 4:15 a.m. on August 29, 2005, Romero led Officers Adkins, Geivet, Madrigal, and Navarrete to the cornfield where Ruiz was found, still tied, with a gunshot wound to the shoulder. The blood on the ground was still wet, but Ruizs body was cold and he had no pulse.
Criminalist Petra Imhof testified that two fired and two unfired shotgun shells were found at the scene. Later analysis determined that the marks left on the expended shells indicated that they were fired by the shotgun recovered in the vehicle. The spent shotgun shells matched the type, brand, and model of shells found in the box in the vehicle. Wadding found at the scene was consistent with the gauge of ammunition found in the box. The pellets taken from Ruizs body were No. 6 shot, the same size shot as in the shells in the car.
Imhof also testified that photographs were taken at the scene of the crime, including photographs of the tire prints left in the area. Criminalist Gregory Laskowski later compared the photographs with impressions taken of Romeros vehicles tires and determined that the vehicle could not be excluded as the source of the tire marks.
Later on August 29, 2005, officers went to Martinezs house and found a pit in the ground. The pit, hidden by the weight bench and plywood seen earlier by Officer Bautista, contained partially burnt clothing and wood. Officers excavated the pit and found it to be approximately nine feet deep. Some cord or rope and a white box with gang graffiti was found in back of the house. The cord was consistent with the type found on Ruiz. Ruizs DNA was found on the bloody undershirt found earlier near Martinezs house.
A videotaped interview of Romero, taken on August 29, 2005, was played for the jury. In it, Romero, who described himself as a member of the "MSD" gang, explained that Fregoso had called and asked that he take him to Martinezs house. Once there, Romero realized that Fregoso wanted him there for his car.
Romero described how he looked though the cracks in the fence and saw people around a small "guy ... a Southerner," who was hog-tied with white cord. According to Romero, "[T]hey had that guy in a freaking hole. I mean, they were talking about the cops went there and didnt find him."
Romero described how Fregoso and a bald person put Ruiz in the trunk, and brought along a shovel. Romero drove to a particular spot, and then on to another location. There, Fregoso and the other person argued about whether they should kill Ruiz because "hes going to say something about Vincents and everything." Romero heard two shots. The others ran back to the car and told Romero that Fregoso took the first shot, and then handed the gun to the other person who shot the victim in the neck.
Later in the interview, Romero mentioned that someone named Octavio was present but that he did not "pull the trigger." Romero stated that he knew where Octavio lived and that he was known as "Noisy." Romero claimed not to know the bald persons name, but later identified him as "Sleepy" and was able to identify him in a photographic lineup.
Valenzuela was arrested on August 31, 2005. Garza had been to his house and told him Fregoso and Romero had been apprehended. Garza suggested that he and Valenzuela go back to the field for the body, but Valenzuela refused.
Garza was apprehended on September 15, 2005. When arrested, Garza was wearing tennis shoes with red laces, a red belt, and a red folded bandanna with the initials WSD, for West Side Delano, a subset of the Delano Nortenos.
A gang expert opined that Fregoso, Garza, Romero, and Valenzuela were members of the Delano Nortenos and that the killing of Ruiz was done for the benefit of that gang.
An autopsy performed on Ruiz found bruising around his left eye, on both temples, and on the back of his head, which occurred within three days of his death. Accumulation of fluid on Ruizs brain indicated that he had suffered a concussion within two days of his death. Ruiz had two gunshot wounds on his left side: one in his shoulder next to his neck and one in his back. Both shots caused fatal hemorrhaging. Ruiz was five feet five inches tall, and weighed 102 pounds. He had methamphetamine in his system when he died.
During closing argument, Fregosos counsel stated that there was no evidence presented by the prosecution to connect Fregoso to the cornfield. The trial court then allowed the prosecution to reopen the case to put on previously suppressed evidence.
Imhof was recalled and testified that she was with a photographer when he took a number of photographs in question at the crime scene. Officer Navarrete was recalled and testified that he seized a pair of Converse shoes from Fregoso and Lugz shoes from Romero at the time they were booked.
Laskowski was recalled and testified that he compared photographs taken of footprints at the cornfield with the shoes seized from Fregoso on August 29, 2005, from Romero when he was booked into jail, and from Garza on September 15, 2005. Laskowski was unable to find any footprints comparable to the shoes worn by Romero or Garza, but determined that one of the tracks matched the wear patterns in the left shoe seized from Fregoso. According to Laskowski, this strongly suggested that Fregosos shoe left the track.
DISCUSSION
1. Batson/Wheeler Claim
Fregoso challenges the trial courts denial of his Batson/Wheeler motions, which were aimed at the prosecutors peremptory excusals of four prospective jurors who were African-American. African-Americans are a cognizable group for purposes of Batson/Wheeler analysis. (People v. Young (2005) 34 Cal.4th 1149, 1171-1172.) It appears from the probation officers report that Fregoso is Hispanic, but a defendant and prospective jurors alleged to have been wrongly excused need not be members of the same race in order for the defendant to complain. (Powers v. Ohio (1991) 499 U.S. 400, 416.)
"The purpose of peremptory challenges is to allow a party to exclude prospective jurors who the party believes may be consciously or unconsciously biased against him or her. [Citation.]" (People v. Jackson (1992) 10 Cal.App.4th 13, 17.) Peremptory challenges may properly be used to remove jurors believed to entertain specific bias, i.e., bias regarding the particular case on trial or the parties or witnesses thereto. (Wheeler, supra, 22 Cal.3d at p. 274.) However, "`[a] prosecutors use of peremptory challenges to strike prospective jurors on the basis of group bias—that is, bias against "members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds"—violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendants right to equal protection under the Fourteenth Amendment to the United States Constitution. [Citations.] [Citation.]" (People v. Bell (2007) 40 Cal.4th 582, 596; see also Batson, supra, 476 U.S. at pp. 88-89; Wheeler, supra, at pp. 276-277.)
"The United States Supreme Court has recently reaffirmed that Batson states the procedure and standard to be used by trial courts when motions challenging peremptory strikes are made. `First, the defendant must make out a prima facie case "by showing that the totality of the relevant facts give 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.] [Citation.]" (People v. Avila (2006) 38 Cal.4th 491, 541, quoting Johnson v. California (2005) 545 U.S. 162, 168 (Johnson).)
The California Supreme Court has "endorsed the same three-part structure of proof for state constitutional claims. [Citations.]" (People v. Bell, supra, 40 Cal.4th at p. 596; see Wheeler, supra, 22 Cal.3d at pp. 280-282.)
With these principles in mind, we turn to the facts of the case before us.
A. Factual Background—Prospective Jurors E.B. and D.B.
Prospective juror E.B. was one of the first 18 prospective jurors questioned during voir dire. The trial court began with some general questions. When the court asked E.B. whether he knew the difference between a criminal and a civil case, he stated that he did not. When the court asked what "we are looking for in jurors," E.B. stated a "[c]lear and level head," in order to know the difference "between right and wrong." And when the court asked what crimes the defendants were charged with, E.B. stated that he had no idea and he did not want to guess.
When the prosecutor and defense counsel were introduced, E.B. stated that he lived in the same apartment complex as defense counsel and had spoken to him once, but that it would not cause him to favor one side over the other.
After some discussion about the burden of proof, the court asked E.B. "what do the defendants have to prove to you?" E.B. replied, "That they are not guilty." The court continued, stating, "Because in America, if you are charged with a crime, you have to prove you didnt do it, right?" E.B. nodded his head affirmatively. After some discussion with other jurors, the court asked E.B. if he wanted to change his answer. He stated, "No," and when the court asked what the Peoples burden of proof beyond a reasonable doubt meant, E.B. stated, "You have to prove that you didnt do the crime that you are charged with." When the court asked later how he would vote "right now," E.B. did state that he would vote "Not guilty."
When the court asked E.B. "[w]ho decides what the facts are in this case," he stated that it was the jury. The trial court then asked, "What are these attorneys going to be doing?" to which E.B. replied, "Proving that their clients are innocent."
At one point, the trial court asked E.B. whether he would automatically think the defendants were guilty because guns were involved. E.B. replied that he would not, and when the court asked whether he did not "own guns for a particular reason," he stated, "Im scared of them."
As for personal information, E.B. stated that he worked for the railroad "on-board service." He stated that he had a "significant other" who was in the penitentiary in Philadelphia for having "shot somebody." E.B. thought his significant other had been unfairly convicted and did not think he had been treated fairly, although he stated that he would not hold that against law enforcement in the current case. E.B. also stated that he was the victim of a crime at the age of eight.
After the trial court informed the jurors that "this is a criminal case," and that "[s]omebody in the courtroom is charged with a crime," the court asked prospective juror D.B. who he thought the defendant or defendants were. D.B. stated that he did not know. D.B. stated that he had cousins involved in gangs, "tattoos and drugs and all that stuff," but that he thought he could be fair.
At one point, in explaining that a defendant has the right to remain silent, the court asked D.B. "is that okay with you?" and he replied affirmatively. When the court asked further if he would hold it against the defendant if he did not take the stand, D.B. said no. When the court asked how long the trial would take, D.B. stated, "I dont know. I have no clue," but then guessed "[a] few months." When the court asked how long the jury would take to deliberate if they heard five or six days of testimony, D.B. stated, "[p]robably about a week." D.B. did not think he would believe a police officer simply because of his occupation.
D.B. described himself as single and a student in child development. He worked for the local school district. He had never served on a jury before, and he had a neighbor who is a police officer. He also stated that he had a cousin who had been arrested for burglary. D.B. did not think that his young age would interfere with his ability to make a decision.
In a peremptory challenge, the prosecution first excused D.B. After the defense jointly exercised a peremptory challenge, the prosecution then excused E.B. Defense counsel objected on Batson/Wheeler grounds, which the trial court stated it would take up later. Both sides made additional peremptory challenges.
At the break, the trial court took up the Batson/Wheeler objection. Defense counsel argued that both E.B. and D.B. were African-Americans, that there appeared to be a total of four African-Americans in the venire, and there did not appear to be an objective justification for peremptorily challenging either D.B. or E.B. The trial court found that a prima facie case had been made and asked the prosecutor to justify the dismissals of E.B. and D.B.
In explaining the challenges, the prosecutor described D.B. as "clueless about the whole process, which caused me some concern." He also expressed concern that D.B. had family members and cousins involved in gangs "given the nature that this is a gang case." As to E.B., the prosecutor cited the fact that he had a significant other in prison on a murder charge who he thought had been wrongly convicted.
The court then solicited comments from the defense. Defense counsel questioned the prosecutors analysis of D.B. as "clueless" and did not think his having relatives in a gang was necessarily different from several other jurors on the panel. As to E.B., defense counsel stated that, although E.B. had a significant other who was convicted of murder, it occurred "some time ago" and "in a different jurisdiction," and that there was no indication that E.B. was still in contact with the particular individual.
The prosecutor then clarified that his concern with D.B. stemmed from his unwillingness or inability, when asked, "to look at the five of us" and to identify the attorneys in the courtroom. The prosecutor also explained that, although D.B. was not the only one who stated he had family members involved in gangs, he was the only one on which the prosecutor had exercised a peremptory challenge because the defense had "kicked off" the other prospective jurors who mentioned that they had gang members in their families.
The court ruled as follows:
"As to [E.B.], thats an easy one. He clearly indicated his significant other was wrongly convicted of murder. It would be incompetence on the prosecutor not to excuse that individual. [¶] As to [D.B.], while I hesitate to use the word clueless, that has a lot of meanings, it is clear that he was quiet. He did not appear to understand some of the concepts. He did relate that some family members were involved in gangs. I dont believe he was excused based on his race. Believe he was excused for race neutral reasons, as articulated by the prosecutor. Therefore, I believe the prosecutors challenges are legally sufficient. So the motion is denied."
B. Factual Background—Prospective Jurors A.S. and J.B.
The following day, during continued jury selection, A.S. at first stated that she could be fair to both sides. Later, when the court asked if there was any reason why she could not be fair, she replied "not really," which the court then asked her to explain. A.S. wondered whether a gun was used in the instant case, because she lost an 18-year-old great-nephew "by a gun" the previous summer. When the court asked whether she would be uncomfortable sitting on a jury in which the defendants were alleged to have shot and killed someone, A.S. said "Well, the fact that they took upon their—I dont know whether or not they did it. Its still the word alleged attached. But now the fact that theyve taken someones life, you know." A.S. stated that she did not have a problem hearing evidence that the victim was a gang member.
A.S. described herself as single, a care provider who ran errands for relatives "from here to Chicago to San Francisco." A.S. had no significant other and no children. She knew people in law enforcement in New York and Baltimore. She had been the victim of a crime six months earlier when someone stole the tailgate to her truck. When the court asked if she had any relatives who had been arrested, she stated that she did, but "not anything serious," which she described as "[t]ickets, light-weight, physical assault."
Both sides then exercised a number of peremptory challenges. The prosecution excused A.S., and defense counsel raised a second Batson/Wheeler challenge, which the trial court stated it would take up later.
Jury selection continued. J.B. described himself as an assistant press operator. He stated he had a significant other who was a secretary for a dentist. He did not have any children, had not served on a jury before, and did not know anyone in law enforcement. He stated he had been the victim of a crime, a robbery, but that no one was arrested and "[t]hey didnt even come out." He wasnt sure if the crime was gang related, due to the neighborhood.
J.B. stated he had been arrested, as had his father and cousins. He described the reason for his own arrest, 12 years earlier, for "[b]eing stupid, messing with credit cards, ATMs, things like that." He stated that his father had been arrested for driving under the influence and his cousin for "drugs, guns, gangs." He thought his cousin was now out of the gang life "for the most part." J.B. stated that he grew up around gangs "pretty much all my life" and he knew active gang members where he now lived, but he thought he could be fair in the current trial.
Later, under questioning by the prosecutor, J.B. explained that his cousin was arrested for guns, narcotics, and gangs in Nevada. He didnt know if his cousin had been fairly treated. He stated that he had friends with whom he socialized who were gang members.
Following a sidebar requested by the prosecutor, the trial court excused J.B. Prior to the conclusion at the end of the day, defense counsel stated he "[j]ust wanted to preserve the Wheeler/Batson motion on [J.B.] and [A.S.]." The trial court stated it would take it up the following day.
The following morning, the trial court took up the Wheeler/Batson motion. The trial court noted that both J.B. and A.S. were African-Americans. As explained by defense counsel, out of the "entire venire of seventy-five, for African American, the prosecution challenged each and every one." Defense counsel described this as "systematic exclusion of African Americans on this jury panel ...." Again the court stated that it found a prima facie showing and asked the prosecutor to explain his reasons.
The prosecutor explained that J.B. had been arrested 12 years earlier on credit card fraud, which "goes to a moral turpitude issue." He was also concerned that J.B. had family members who were arrested on gun and gang charges and had friends who were gang members. The prosecutor argued there was reasonable justification for J.B.s excusal, given the nature of the charges in the present case. As to A.S., the prosecutor noted that she came to court for two days wearing dark sunglasses, which signified to him that "she did not want to be here." The prosecutor stated that A.S. was hesitant when asked if she could be fair, and she didnt like people who carried guns, which was an issue not only for the defense, but the prosecutions star witness had a prior offense for carrying a pistol. The prosecutor found A.S.s explanation of her job tenuous. He also stated that he was not so sure she could "get along" with the other jurors, as she was seated four feet from him during jury selection and talked to herself "during the entire time."
Defense counsel argued that J.B. was gainfully employed, as was his significant other, and that he lived in an area where gangs were prevalent, "not by choice but apparently by economic circumstances." Defense counsel did not think his past criminal conduct was critical, as he was not convicted of a felony, "at least not disqualif[ied] for jury service." As to A.S., defense counsel stated that she was gainfully employed as a care provider, and he understood what it was that she did. And while she did not like guns, no one did. Defense counsel acknowledged that she was "difficult to get through to," but she answered the questions. Defense counsel did not hear A.S. talking to herself.
The trial court then denied the motion, stating:
"Well, on its face, seems that there were four African American jurors and four were excused by the prosecutor. That seems like theres some type of discrimination, but I think—I think there are reasons to excuse three of them, maybe not [D.B.], the other three were so obvious I dont know if I question myself making a finding there is a prima facie case. I think it was so obvious they had to be excused. [¶] [J.B.] with his background, gang contacts, his family contacts, and real reluctance to tell us about his prior conviction. [¶] I know its embarrassing. Most jurors just come out and say it to get it over with. He was quite reluctant. I think it was absolutely race neutral and appropriate to excuse [J.B.] from this jury given all those factors that are articulated by [the prosecutor]. [¶] As to [A.S.], one of those rare jurors, as soon as you stood up, walking into the side of the bar to sit down, obvious to this court she wasnt going to be on the jury. [¶] It was that obvious from her demeanor, her dress, her attitude. Whenever we sat her down before we closed on Monday afternoon, we didnt talk to her yesterday morning, Tuesday morning, clearly obvious to me she could not be on a jury of twelve in that one minute of seeing her. [¶] And given her responses, as [the prosecutor] said, I didnt hear her speak to herself, but I trust [the prosecutor]. I dont think hes making that up by any means. Ill accept the fact nobody else did hear it. Doesnt mean it didnt happen. Even if you dont consider that obvious reasons to exclude her, that has nothing whatsoever to do with race, therefore, Im going to deny the motion."
C. Analysis
The trial court ruled for the defense in step one of the Batson/Wheeler analysis by finding a prima facie case of improper discrimination. We assume substantial evidence supports that determination. (See People v. Silva (2001) 25 Cal.4th 345, 384; People v. Alvarez (1996) 14 Cal.4th 155, 197.) Accordingly, we move to step two.
At step two, the prosecutor must come forward with a race-neutral explanation as to each challenge. (People v. Silva, supra, 24 Cal.4th at p. 384.)
"In evaluating the race neutrality of an attorneys explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law.... [¶] A neutral explanation in the context of our analysis here means an explanation based on something other than the race of the juror. At this step of the inquiry, the issue is the facial validity of the prosecutors explanation. Unless a discriminatory intent is inherent in the prosecutors explanation, the reason offered will be deemed race neutral." (Hernandez v. New York (1991) 500 U.S. 352, 359-360 (plur. opn. of Kennedy, J.).)
At this step, the explanation need not be persuasive, or even plausible. (Purkett v. Elem (1995) 514 U.S. 765, 767-768.)
The prosecutor stated race-neutral reasons with respect to each of the excused jurors: E.B. (significant other in prison for murder); D.B. ("clueless" and had family gang members); A.S. (demeanor); and J.B. (prior arrest and family and friends in gangs).
At step three of the Batson/Wheeler analysis, the trial court must decide whether the opponent of the peremptory strike has proved purposeful racial discrimination by a preponderance of the evidence. (Purkett v. Elam, supra, 514 U.S. at p. 767; People v. Hutchins (2007) 147 Cal.App.4th 992, 997-998.) At this point, the persuasiveness of the proffered justification becomes relevant (Johnson, supra, 545 U.S. at p. 171), as implausible or fantastic justification will often be found to be pretext for purposeful discrimination (Purkett v. Elam, supra, at p. 768).
But a prosecutor is presumed to use his or her peremptory challenges in a constitutional manner (People v. Alvarez, supra, 14 Cal.4th at p. 193; Wheeler, supra, 22 Cal.3d at p. 278), and the justification proffered for the particular excusal "need not support a challenge for cause, and even a `trivial reason, if genuine and neutral, will suffice. [Citations.]" (People v. Arias (1996) 13 Cal.4th 92, 136.) "What is required are reasonably specific and neutral explanations that are related to the particular case being tried." (People v. Johnson (1989) 47 Cal.3d 1194, 1218.)
"All that matters is that the prosecutors reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory. `[A] "legitimate reason" is not a reason that makes sense, but a reason that does not deny equal protection. [Citations.] [Citation.]" (People v. Reynoso (2003) 31 Cal.4th 903, 924, quoting Purkett v. Elam, supra, 514 U.S. at p. 769.)
Once the prosecutor "come[s] forward with an explanation that demonstrates a neutral explanation related to the particular case to be tried" (People v. Johnson, supra, 47 Cal.3d at p. 1216), the trial court must then satisfy itself that the explanation is genuine. (People v. Hall (1983) 35 Cal.3d 161, 168.) "In [this] process, the trial court must determine not only that a valid reason existed but also that the reason actually prompted the prosecutors exercise of the particular peremptory challenge." (People v. Fuentes (1991) 54 Cal.3d 707, 720.)
"This demands of the trial judge a sincere and reasoned attempt to evaluate the prosecutors explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily, for `we rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination. [Citation.]" (People v. Hall, supra, 35 Cal.3d at pp. 167-168.)
"When a trial court has made a sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror, we accord great deference to its ruling, reviewing it under the substantial evidence standard. [Citations.]" (People v. Jurado (2006) 38 Cal.4th 72, 104-105.) Deference does not, of course, "imply abandonment or abdication of judicial review." (Miller-El v. Cockrell (2003) 537 U.S. 322, 340.)
Fregoso argues that "by the conclusion of the hearing on the second motion, the trial court was no longer persuaded by the governments justification for the [D.B.] peremptory challenge." In support of this assertion, Fregoso quotes the trial court as follows:
"Well, on its face, seems that there were four African American jurors and four were excused by the prosecutor. That seems like theres some type of discrimination, but I think—I think there are reasons to excuse three of them, maybe not [D.B.], the other three were so obvious I dont know if I question myself making a finding there is a prima facie case. I think it was so obvious they had to be excused."
But, as respondent correctly argues, Fregoso has misinterpreted the trial courts comments. Taken as a whole, the comments do not indicate that the trial court thought D.B.s excusal was unjustified. Instead, the trial court thought the reasons for dismissing the other three jurors were so obvious that it questioned its original finding of a prima facie showing.
We find that substantial evidence does support the trial courts rulings with respect to E.B., D.B., A.S., and J.B. E.B.s significant other was in prison for shooting someone. This alone could serve as a valid race-neutral reason to excuse him. (See People v. Cummings (1993) 4 Cal.4th 1233, 1282 [prospective jurors relatives conviction of a crime was a proper consideration justifying peremptory challenge]; People v. Dunn (1995) 40 Cal.App.4th 1039, 1049 [prosecution properly challenged juror whose uncle had been convicted of murder].) In addition, E.B. believed his significant other had been wrongly convicted. A peremptory challenge based on a negative experience with law enforcement is a proper race-neutral reason. (People v. Turner (1994) 8 Cal.4th 137, 171, overruled on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)
D.B. had cousins involved with gangs. Given the gang allegations in this case, this reason was inherently plausible and supported by the record. In addition, the prosecutor described D.B. as "clueless." The trial court, while not willing to label D.B. as "clueless," nonetheless agreed that D.B. was "quiet" and his response to questions appeared to indicate that he did not understand some concepts. The record shows that, when asked to do so, D.B. was either unwilling or unable to identify the defendants from a group of five people present in the courtroom. When a prosecutors concern for a jurors ability to understand is supported by the record, it is a proper basis for challenge. (People v. Turner, supra, 8 Cal.4th at p. 169.)
A.S.s demeanor was properly the subject of a peremptory challenge. Her manner of dress, wearing dark glasses to court both days, caused the prosecutor to believe that she did not want to serve on the jury. The prosecutor found her tendency to talk to herself "annoying," and he did not think she would cooperate with the other jurors. The trial court agreed with the prosecutor that A.S. was "one of those rare jurors, as soon as you stood up, walking into the side of the bar to sit down, obvious to this court she wasnt going to be on the jury. [¶] It was that obvious from her demeanor, her dress, her attitude." Prospective jurors "`may be excused based on "hunches" and even "arbitrary" exclusion is permissible, so long as the reasons are not based on impermissible group bias." (People v. Box (2000) 23 Cal.4th 1153, 1186, fn. 6; see People v. Turner, supra, 8 Cal.4th at p. 165.) Such credibility determinations are solely the province of the trial court. Ultimately, we must affirm if the record suggests grounds on which the prosecutor might reasonably have peremptorily challenged the jurors in question. (People v. Turner, supra, at p. 165; People v. Howard (1992) 1 Cal.4th 1132, 1155.)
And finally, J.B. not only had family and friends who were gang members, but he also had a prior conviction, which the prosecutor described as a crime of "moral turpitude." Both of these race-neutral reasons are supported by the record and justified the peremptory challenge.
Each of these reasons, individually or in the aggregate, suggest legitimate, race-neutral grounds upon which the prosecutor reasonably might have challenged the prospective jurors. We must give "great deference to the trial court in distinguishing bona fide reasons from sham excuses. [Citations.]" (People v. Turner, supra, 8 Cal.4th at p. 165.) The Wheeler court recognized that appellate courts can "rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination." (Wheeler, supra, 22 Cal.3d at p. 282; see also People v. Johnson, supra, 47 Cal.3d at p. 1216.)
Given the substantial evidence standard of review, the burden on the opponent of the challenge, and the appropriate deference we must extend to the trial court, we conclude the peremptory challenges were proper and there is no Batson/Wheeler error.
2. Reopening of the Prosecutions Case
Fregoso contends the trial court erred when it stopped defense counsels closing argument and, over objection, permitted the prosecution to reopen and present evidence that had been excluded pursuant to section 1538.5. The evidence consisted of photographs of footprints from the crime scene, which a criminalist testified could have been made by the left shoe from a pair of Converse shoes that Officer Navarrete testified he seized from Fregoso during the booking process. We find that any error was not prejudicial.
A. Procedural History
In January of 2006, Fregosos counsel filed a section 1538.5 motion to suppress evidence obtained as a result of Fregosos arrest and the search of the vehicle in which he had been a passenger. At the hearing, Officer Navarrete testified that he saw the car in question hesitate at an intersection for several seconds before proceeding. It then proceeded through and made three turns, each without signaling. Navarrete decided to stop the vehicle for failure to properly signal but, before he activated the overhead emergency lights on the patrol car, the suspect vehicle turned into a residential driveway. At this point, three people, including Fregoso, who was not the driver, got out of the vehicle and fled. Navarrete chased Fregoso, apprehended him, and placed him under arrest for obstructing or delaying a peace officer. While Navarrete pursued Fregoso, he heard on his police radio that a firearm had been found in the vehicle. Navarrete had had no suspicion that the individual who fled had committed a crime other than failure to obey his order to stop, until he heard this information on his radio.
Officer Adkins testified that he was the driver of the patrol car behind the suspect vehicle when it turned "like it was trying to be evasive towards us." When the vehicle "turned right and then ... accelerated into the left turn with no signal," it gave the officer "probable cause to do a traffic stop." Adkins followed the vehicle until it turned into a driveway. He turned on his overhead lights just as the occupants of the vehicle fled. When he looked inside the vehicle, he saw a shovel, pickax, ground cloth, and what he thought was a modified rifle. He broadcast this information over the radio.
Defense counsel argued that, even if the detention of the vehicle for an infraction was not unreasonable, there was insufficient evidence for the subsequent detention and arrest of Fregoso, who was not the driver.
The trial court ultimately denied the motion as to the search of the vehicle and granted it as to the search of Fregoso. The court reasoned that Fregoso could not be arrested for resisting or delaying a peace officer because the officer had no right to "keep" Fregoso during a traffic stop.
The attorney general points out that this ruling was made prior to the decision in Brendlin v. California (2007) 551 U.S. __ , which might have changed the result. We need not address this issue, however, given the way in which this case will be decided.
Prior to trial, on May 18, 2006, defense counsel filed several motions in limine, including a request that the court prohibit the prosecution from making any reference to the items suppressed. This included reference to Fregosos clothing and the Converse shoes suppressed in the January 30, 2006, order.
At the hearing on the motions, the trial court noted that defense counsel "wanted to put on evidence that the clothing, which is the subject of the suppression motion, apparently did not have ... blood spatter on it." Defense counsel explained that it actually was "a lack of plant material found on Mr. Fregosos clothes consistent with the cornfield," that he wanted to put into evidence. The trial court then noted that the prosecutor indicated he had an expert who would testify that there were shoe prints in the cornfield consistent with the shoes Fregoso was wearing at his arrest.
The trial court granted the defense motion as written, but said: "That [leads] us into this other area of what happens should [defense counsel] elect to put on evidence that the clothes did not contain plant material." The court predicted that, were this to occur, the prosecutor would ask that evidence of the shoe print be allowed. The prosecutor agreed that he would make such a request and argued that defense counsel could not use the suppression motion as both a shield and a sword.
The trial court then asked both parties to
"address that issue as to what happens if [Fregoso] puts on evidence that had been suppressed by the Court for one purpose, can the People then use the evidence suppressed by the Court for a second purpose. If you put on evidence that the clothes did not contain plant material, therefore, my client wasnt at the scene would be the inference you would want to draw, can the People use that same—those same articles of clothing, the same suppressed evidence, and try to show otherwise."
The court then deferred ruling on this potential development.
On May 24, 2006, the trial court revisited the issue. The court warned that, if the defense brought up the items that were suppressed, "specifically the clothing to show [Fregoso] was not at the scene," it would open the door to allow the People "to bring in the items of clothing that, in fact, connected him to the scene." Defense counsel stated he was willing to waive that portion of the suppression order relating to the upper clothes, but not the shoes. The court declined defense counsels offer and reaffirmed its ruling.
The following day, Petra Imhof, a criminalist for the prosecution, testified that she had gone to the scene of the crime, where she assisted another criminalist in taking photographs and drawing a sketch of the area. Imhof testified that there were two fired shotgun shells and two shotgun shells that were not fired found at the scene. She explained several photographs of the crime scene, including photographs of the victim. Imhof testified that she attended the autopsy of the victim, where she was given shot pellets recovered from the body. Imhof helped to process "a vehicle" that contained a shotgun shell box, a shovel, a pick, a gun, and a knife. Imhof also took tire impressions from the vehicle.
Prior to cross-examining Imhof, defense counsel advised the trial court that he "intend[ed] to go in with Ms. Imhof into the matters of the footprints. Not with regard to identity of the footprints, but the fact that she saw footprints there ... [and] she took pictures of them." Defense counsel stated that he wished to introduce evidence of the pictures, and also evidence that Imhof had collected plant material from the cornfield. Defense counsel wanted to make sure "that wasnt in any way violating your previous order."
The trial court questioned how defense counsel intended to argue evidence of footprints in the cornfield; counsel did not want to disclose his intent, as that was "part of the defense." The trial court warned counsel that he needed to disclose that intent, "or you are going to open up the door." Defense counsel eventually stated that he was going to argue that there was no evidence of Fregosos footprints at the scene of the crime. But the trial court warned defense counsel, stating, "Because it was suppressed. So you opened the door, you cant do that. If you get in the footprints, it opens the door up." The trial court stated that, if defense counsel still wanted to debate the issue, he could brief it further and Imhof could be recalled for questioning.
The following day, May 26, 2006, defense counsel again informed the trial court that he was willing to waive the suppression order as to Fregosos pants and shirt, so that he could explain the lack of plant material on the clothing. The trial court repeated that it would be unfair for the defense to use the clothing to argue Fregoso was not at the crime scene, when the shoes arguably did link him to the scene. Noting defense counsels argument had not changed, the court saw no reason to revisit its prior ruling.
Later that same day, defense counsel told the trial court there were photographs of shoeprints at the scene made by shoes other than Converse brand. The trial court again warned defense counsel this testimony would open the door to otherwise excluded evidence. Defense counsel disagreed with the position of the trial court but stated he wouldnt ask about the shoeprints.
Several days later, Imhof was recalled as a defense witness, and defense counsel asked her about the presence of blood spatter around the body and on the cornstalks at the crime scene. Defense counsel also asked if Imhof had collected plant material at the scene, which she stated she had. He also questioned her about having collected latent fingerprints and DNA evidence from the vehicle.
During a recess, the prosecutor complained that defense counsel was "setting up" a failure to investigate argument. But defense counsel countered that he had not mentioned "anything about footprints." The trial court again questioned defense counsel about his intent in asking this information and warned defense counsel that "If you make any reference in your closing argument that there was not trace evidence found on your clients clothes or shoes, Im going to allow the People to reopen their case at that point in time and put all that evidence on if you make any inference whatsoever. I want you to thoroughly understand that." The trial court told defense counsel that, because the clothes and shoes were both suppressed, he could not "separate the clothing with the trace evidence ... and the shoes ...."
On June 5, 2006, defense counsel made his closing argument. His defense theory was that only the testimony of two accomplices, Romero and Valenzuela, tied Fregoso to the cornfield. He asserted that Fregoso was not the same person who ran from the vehicle when it stopped. He then stated, "Now lets move on to the cornfield for a second. Did you notice that there was no evidence presented by the prosecution connecting my client to [the] cornfield? There was some evidence about a car, some car tracks there. That was a little nebulous as to—"
At this point, the trial court interrupted defense counsels argument and called counsel to sidebar. The trial court then told the jurors it was going to reopen evidence, and recessed them for an hour. Out of the presence of the jury, the trial court stated,
"I want to make this perfectly clear, [defense counsel]. We went over this for two weeks. I even told you last week that if you made the argument you just made, I was going to allow the prosecutor to reopen and put the evidence on. So you forced my hand. I dont know how much clearer I could have been. But when you argued just now to the jurors that there was no evidence presented by the prosecutor connecting your client to the cornfield, that was based on the ruling suppressing your clients clothing. That the clothing, the shoes which connected him to the footprints at the scene, I told you, Ive told you for two weeks and I told you specifically last week, if you made that argument, I was going to stop the arguments, I was going to allow the prosecutor to reopen, and [the prosecutor] has elected to exercise that option. I dont think there is any excuse for what you did when I told you over and over except to mislead the jury so we are going to put on evidence."
Defense counsel protested that allowing evidence at that point was inappropriate, because the error could be corrected with an admonition and instruction to the jury. He also informed the trial court that his argument was going to be that none of the evidence presented—the fingerprints on the shells, the gun, the pickax, the shovel, or any DNA or gun residue—connected Fregoso to the scene.
The trial court stated that it had "thought about this for the last two weeks from the minute this case was sent in here, and there was in-chambers discussion off-the-record discussions about in limine motions. [And] [w]e have put this argument on the record." The trial court did not think it could "unring the bell" with an admonition. According to the trial court, had defense counsel "simply argued" that Fregosos fingerprints were not found on the car or in the car or on the pickax or shovel, "thats a fair argument." The trial court considered allowing the People to reopen and put on the evidence as the "only fair way to cure it."
Subsequently, Imhof was recalled by the People and testified that several of the photographs taken at the scene depicted shoeprints. Officer Navarrete was recalled and testified that he seized some shoes from Fregoso at the time of his arrest. Laskowski testified that he compared photographs taken of footprints at the cornfield with the shoes seized (1) from Fregoso on August 29, 2005, (2) from Romero when he was booked into jail, and (3) from Garza on September 15, 2005. Laskowski was unable to find any footprints comparable to the shoes worn by Romero or Garza, but determined that one of the tracks left at the scene matched the wear patterns in the left shoe seized from Fregoso. According to Laskowski, this strongly suggested, but did not positively prove, that Fregosos shoe left the track. Defense counsel, in rebuttal, presented evidence that no plant material from the crime scene was found on Fregosos clothing.
Fregoso now challenges the trial courts ruling allowing introduction of the previously suppressed evidence of his shoes, to match to the shoeprints found at the scene of the crime. No appellate review was sought to overturn that portion of the suppression motion, so we assume, for purposes of this review, that the suppression order was properly granted.
But see part 5, post.
B. Analysis
There is scant authority on the issue Fregoso presents. We believe that defense counsel was properly precluded from arguing that there was no "evidence presented by the prosecution connecting [his] client to [the] cornfield." An attorney commits misconduct by commenting on the adversarys failure to produce evidence the attorney knows was excluded by the court. (People v. Varona (1983) 143 Cal.App.3d 566, 570.) But the trial court here went far beyond preventing defense counsels misconduct and, in doing so, entered the realm of possible constitutional error. (Compare United States v. Havens (1980) 446 U.S. 620, 627-628 & Walder v. United States (1954) 347 U.S. 62, 65 [prosecution may introduce illegally obtained evidence to impeach testimony given by accused] with James v. Illinois (1990) 493 U.S. 307, 313 [prosecution generally may not impeach testimony of other defense witnesses with illegally obtained evidence]; compare also People v. Payne (1983) 98 Ill.2d 45, 49-51, cert. den. sub nom. Payne v. Illinois (1984) 465 U.S. 1036 [defense counsel opened door to admission of otherwise suppressed evidence by cross-examination that implied it did not exist] with Rogers v. State (2003) 844 So.2d 728, 731-732 [defense counsels closing argument did not open door to otherwise excluded evidence even if the argument was improper].)
Because we conclude, however, that if the trial court here did commit error it was nonetheless harmless beyond a reasonable doubt (Arizona v. Fulminante (1991) 499 U.S. 279; Chapman v. California (1967) 386 U.S. 18), we decline to decide whether error did occur.
To evaluate prejudice, we must examine the strength of the evidence that was properly before the jury. (Arizona v. Fulminante, supra, 499 U.S. at p. 310.) In this case, such examination reveals overwhelming evidence of guilt.
There was no significant conflict between the testimony of the accomplices Stephen Romero and Jesus Valenzuela. Romero testified that he picked up Fregoso and took him to Martinezs house on the night of the crime. Valenzuela testified he saw Fregoso at Martinezs house when Garza pulled the victim out of the pit and tied him up. Fregoso ordered Romero to park his car in reverse in the driveway, and remarked that there was "a little scrap pinned up in a hole." Romero saw Fregoso and Garza kick and beat the victim and call him derogatory names.
It was either Garza or Fregoso who took the victim to the car and placed him in the trunk. Fregoso got into the car and someone brought him a shovel and a pick. Valenzuela saw a gun in the car.
Romero testified it was Fregoso who directed him to the cornfield, and it was Fregoso who said they needed to kill Ruiz to prevent him from "`tell[ing] the cops where Vinny lives." Romero testified that Fregoso dragged Ruiz into the field. He then heard a shot and Fregoso returned to the car. Garza told Romero that he shot Ruiz in the neck after Fregoso shot him. Fregoso bragged to Romero that they had "`earned our stripes," which meant they had killed or beaten a rival gang member. Valenzuela testified that it was Fregoso who shot the victim first.
When the vehicle was stopped by officers after it had been to the cornfield, two officers observed Fregoso exit the front passenger seat. Though defense counsel argued it was not Fregoso who exited the vehicle, but someone else, the argument was not convincing. A shovel, pickax, and gloves were found in the back seat of the vehicle. A knife was wedged behind the back of the rear seat. A shotgun with a spent casing and a box of shotgun shells were found in the vehicle. Two fired and two unfired shotgun shells were found at the scene. Analysis revealed that the marks left on the expended shells matched the shotgun found in the vehicle. The spent shotgun shells matched the type of shells found in the box in the vehicle. Wadding found at the scene matched that of the gauge of ammunition found in the box. The pellets taken from the victims body matched the size of shot in the shells in the car.
Later, officers discovered the pit in Martinezs backyard. Cord consistent with the type found to tie up Ruiz was found at the house. Analysis revealed Ruizs DNA on the bloody undershirt found by an officer near Martinezs house.
Thus, the evidence, while largely supplied by two accomplices, was nonetheless bolstered by the officers observations of Fregoso and the others in the vehicle, by evidence found in the vehicle tying the individuals to the murder, by evidence of the tire tracks at the scene of the crime, and by evidence at Martinezs home corroborating Romeros and Valenzuelas accounts.
We next consider the impact of the shoeprint evidence on the jury in light of the above properly admitted evidence. The timing of the admission of the shoeprint evidence in the middle of defense counsels closing argument certainly accentuated it. But, we note, the shoeprint evidence did not definitively tie Fregoso to the scene. Laskowski opined that the shoe track strongly suggested, but that it did not positively prove, that the Converse shoe left the track. Navarrete testified that he seized a pair of Converse shoes from Fregoso and Lugz from Romero at the time they were booked. But Romero had testified earlier that he was wearing a pair of Converse shoes at the time of his arrest—a fact seized upon by defense counsel when he resumed argument to the jury. In addition, this shoeprint evidence was countered by the additional evidence that defense counsel was then allowed to present: that Fregosos clothing on the night of his arrest did not contain any of the samples of weed, corn, stamen, or leaf collected at the scene. According to criminalist Jeanne Spencer, when she took each item of clothing, scraped it to see what fell off, and then compared it to the plant material from the scene, she did not find any of the "three weed types, the stamen or the corn leaf" on Fregosos clothing. The criminalist did acknowledge that the absence of plant material did not mean that Fregoso had not been in the cornfield.
In spite of the overwhelming evidence of Fregosos guilt, he argues here that this was a "close case." In support, he asserts the jury deliberated 10 and one-half hours over the course of three days. But he fails to note that the verdict against him was signed and dated on the first of the three days of deliberations, and the remaining deliberations concerned the codefendant Garza. He also relies on a jury question during deliberations and a request for a readback of testimony, but the record reveals that the jury question concerned only an enhancement and the request for a readback occurred after the jury had already signed a verdict against him. We find nothing in the record to support the proposition that this was a close case.
Under the circumstances, we can say beyond a reasonable doubt that the admission of the shoeprint evidence did not contribute to the verdict. We therefore find the error harmless.
3. Prosecutorial Misconduct
Fregoso contends the prosecutor committed misconduct during closing and rebuttal arguments, which resulted in an infringement of his federally guaranteed due process rights. Fregoso claims that reversal of his conviction is required because the prosecutor committed misconduct by becoming his own witness, by vouching for the veracity of his witnesses, and by misstating the evidence. A review of the record reveals no prejudicial misconduct on the part of the prosecutor.
A. The Record
Fregoso points to the following instances in which he claims prosecutorial misconduct occurred:
(1) During closing, after making some preliminary statements, the prosecutor stated that the jury had to find corroborating evidence tying Fregoso to the scene before looking at Romeros and Valenzuelas testimony. He then stated that both Officers Adkins and Navarrete saw Fregoso leave the car in which the murder weapon was found. Defense counsels objection on grounds that the prosecutor misstated the evidence was overruled.
(2) During closing, the prosecutor referred to the plea agreements made with Romero and Valenzuela, stating, "They were made deals for their testimony. I was the one that made those deals with them, and the reason was is that—" Defense counsel objected to this statement on grounds of "no evidence of the reason why the deals were made." The trial court overruled the objections, stating it was "proper argument." The prosecutor then continued, stating, "The reason was is that that allowed the People to focus on the two individuals who they believe were the ones that actually fired the shots. Thats why the deals were made ...." No objection was made to this statement.
(3) During rebuttal, the prosecutor again addressed the issue of the plea agreements:
"I was the one that made those deals. They pled for seven years. They both said, `I dont know how much Im going to get. They are going to get some less time. It was clear. I think [defense counsel] went over and over and over on cross-examination. But one thing that is true is that I cannot prevent them from getting sentenced in a couple weeks. If they got up here and said something completely different, I cannot stop that sentencing from going through."
Defense counsel objected, stating the argument "[m]isstates the law and the agreement." The trial court overruled the objection, stating "the jury is well informed what the agreement was." The prosecutor continued, stating,
"The agreement is not one where I have to hear certain things. The agreement was for them to get up and tell the truth. They got up there and said the truth is X, Y and Z. I cant say, `You know what? Sorry, buddy. You lost out on your plea agreement and now you are going to be facing 12 people on a jury trial. I cant do that."
No further objection was made by defense counsel.
(4) Also during rebuttal, the prosecutor stated, "I think there was evidence that [Fregoso] dropped a red bandanna when he was being chased." Defense counsel objected, stating "Thats not part of the evidence." The trial court overruled the objection, but stated, "Ladies and gentlemen, I really honestly dont remember. Im going to leave it to your good wisdom and the 12 collective minds to decide if thats true or not."
B. Analysis
"`Prosecutorial misconduct implies the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." (People v. Haskett (1982) 30 Cal.3d 841, 866, quoting People v. Strickland (1974) 11 Cal.3d 946, 955.) A prosecutor has a duty to prosecute vigorously and, "`while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." (People v. Pitts (1990) 223 Cal.App.3d 606, 691, quoting Berger v. United States (1935) 295 U.S. 78, 88.)
We agree with respondent, however, that the challenged remarks, in context, did not constitute misconduct and, even if improper, did not prejudice Fregoso. (People v. Lucas (1995) 12 Cal.4th 415, 475 [prosecutors statements must be viewed in light of the argument as a whole].) We will not reverse a criminal conviction for prosecutorial misconduct unless the defendant was prejudiced.
Fregoso contends the prosecutor was allowed to become his own witness when he stated that "the reason [for making the plea agreements with Romero and Valenzuela] was ... that that allowed the People to focus on the two individuals who they believe were the ones that actually fired the shots" (No. 2). He claims this also occurred during rebuttal when the prosecutor stated that he was the one who made the deals (No. 3). We disagree.
A prosecutor commits misconduct by referring in closing argument to facts that are not in evidence. As the court explained in People v. Hill (1998) 17 Cal.4th 800,
"[S]uch practice is `clearly ... misconduct [citation], because such statements `tend[] to make the prosecutor his [or her] own witness—offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, "although worthless as a matter of law, can be `dynamite to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence." [Citations.] [Citations.] `Statements of supposed facts not in evidence ... are a highly prejudicial form of misconduct, and a frequent basis for reversal." (Id. at p. 828; see, e.g., People v. Hall (2000) 82 Cal.App.4th 813, 817 [reversible error for prosecutor to tell jury that testimony of officer not called as a witness would have been the same as officer who testified]; People v. Gaines (1997) 54 Cal.App.4th 821, 825 [misconduct for prosecutor to argue that defense secured alibi witnesss absence, that prosecution tried to find witness, and that witness, if called, would have impeached defendant].)
Here, the statement by the prosecutor, that the plea bargains were made because Garza and Fregoso were believed to be the actual shooters, was no more than a comment on evidence already before the jury. The comment that he was the prosecutor who made the deals was not only inconsequential, it was also an inference that the jury could reasonably draw from the circumstances at trial as well.
Fregoso argues further that the statement made by the prosecutor during closing argument (No. 2) also improperly vouched for the veracity of the two accomplices. We disagree.
Impermissible "vouching" may occur when a prosecutor places the governments prestige behind a witness through personal assurances of the witnesss veracity, or suggests that information not presented to the jury supports the witnesss testimony. It is improper for a prosecutor to argue that he or she has superior knowledge of sources not available to the jury. (People v. Williams (1997) 16 Cal.4th 153, 257.)
In Williams, the defendant argued the prosecutor committed misconduct by "vouching" for a prosecution witness by stating the witness "cut a deal" with the People by agreeing to testify "truthfully and honestly" in return for being allowed to plead guilty to robbery on charges pending against him. (People v. Williams, supra, 16 Cal.4th at p. 256.)
Williams states that a prosecutor can accurately recount the nature of the Peoples agreement with a witness as an aid to the jurys evaluation of the witnesss credibility. (People v. Williams, supra, 16 Cal.4th at p. 257.) "Prosecutorial assurances, based on the record, regarding the apparent honesty or reliability of prosecution witnesses, cannot be characterized as improper `vouching, which usually involves an attempt to bolster a witness by references to facts outside the record." (People v. Medina (1995) 11 Cal.4th 694, 757.) Williams held that no prosecutorial misconduct arose from the prosecutors statement of the witnesss "deal." (People v. Williams, supra, at p. 257.)
Here, the prosecutors mention of the reason for the plea agreements did not vouch for the witnesses.
Finally, Fregoso claims several of the prosecutors statements misstated the evidence: when he stated that Officers Adkins and Navarrete saw Fregoso leave the vehicle in which the murder weapon was found (No. 1); when he asserted in rebuttal that he had no power to retract the agreements if he did not "hear certain things" from Romeros and Valenzuelas testimony (No. 3); and when he stated that Fregoso dropped a red bandanna while being chased (No. 4). Although prosecutors have wide latitude to draw inferences from the evidence presented at trial, mischaracterizing the evidence is misconduct. (People v. Hill, supra, 17 Cal.4th at p. 823.) The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. (Id. at p. 819.)
As to the instance in which the prosecutor argued that Officers Adkins and Navarrete saw Fregoso leave the vehicle in which the murder weapon was found (No. 1), Officer Adkins testified that he saw Fregoso leave the vehicle. Officer Navarrete testified that he recognized Fregoso as one of the individuals who exited the vehicle. He then chased and apprehended him.
Fregoso points to the fact that, on cross-examination, Officer Navarrete admitted he could not identify Fregoso when he got out of the car. But this statement is taken out of context. Officer Navarrete was asked by defense counsel whether he knew Fregoso prior to the incident in question. The officer stated that he did, that he didnt identify him at the time he exited the vehicle, but he realized it was Fregoso after his arrest.
The statement made by the prosecutor, that both officers saw Fregoso exit the vehicle, was a reasonable inference made from the evidence presented.
As to the instance in which the prosecutor asserted he had no power to retract Romero and Valenzuelas plea agreements, again Fregoso has taken this statement out of context. What the prosecutor stated was that he had no power to retract the plea agreements if Romero or Valenzuela got on the stand and "said something completely different" (No. 3). The trial court pointed out that the jury was well informed of the substance of the agreement, and the record shows that both Romero and Valenzuela stated that they were to testify truthfully at trial. In addition, the prosecutor clarified that the agreement was not one "where I have to hear certain things," but that "[t]he agreement was for them to get up and tell the truth." This statement, while somewhat confusing, did not rise to the level of misconduct.
And, finally, as to the statement by the prosecutor that Fregoso dropped a red bandanna while being chased (No. 4), respondent acknowledges that the prosecutor was mistaken in attributing the bandanna to Fregoso rather than Garza. But respondent argues, and we agree, that no prejudice accrued therefrom. Evidence of Fregosos gang affiliation was ample. In addition, the trial courts comments clearly told the jury it had to rely on its own recollection of the evidence in determining the facts, the jury was properly instructed that statements of counsel were not evidence (CALCRIM No. 222), and that it was the duty of the jury to determine the facts based on all evidence (CALCRIM No. 223).
We reject Fregosos claim of prejudicial prosecutorial misconduct.
4. Legality of the Traffic Stop
As chronicled ante, defense counsel filed a motion to suppress evidence obtained as a result of a traffic stop of Romeros vehicle. Fregoso was a passenger in the vehicle. Fregoso contends the trial court erred in denying the motion to suppress because the stop of the vehicle was unreasonable under the Fourth Amendment of the federal Constitution. We disagree.
A. The Record
The suppression motion by defense counsel sought to suppress evidence seized as "the result of a traffic stop initiated without probable cause and an unlawful detention of the motor vehicle and its occupants, and the unlawful arrest of ... Fregoso ...." The People opposed the motion, stating that Fregoso, as a passenger and not the owner of the vehicle, lacked standing to contest the constitutional reasonableness of the detention.
At the hearing on the motion, the trial court first questioned the prosecutor on the issue of standing. The prosecutor responded that he raised the issue of standing in his moving papers because Fregoso fled and abandoned the property and was not the driver of the vehicle. Defense counsel argued that there was an unlawful detention of the vehicle and also of Fregoso; he was moving to suppress the evidence found in the vehicle based on a lack of probable cause for the stop and search of the vehicle. The court asked defense counsel, "[a]ssuming the Court finds there is sufficient evidence to warrant the initial detention ... what is it that would give [Fregoso] standing with respect to the search of the vehicle, given the fact that he flees the scene?" Defense counsel stated he had nothing to offer on that subject.
Testimony was then heard from Officers Navarrete, Adkins and Geivet. The primary issue was the timing of when Navarrete and Adkins activated their overhead lights in order to determine if there was a justified detention. In other words, did the car stop in response to the activated lights or did the vehicle stop first and the officers then activate their lights?
Officer Navarrete testified that he saw the suspect vehicle at 1:10 a.m. on August 29, 2005, as he approached an intersection. The vehicle was stopped at a stop sign and hesitated to proceed. When the vehicle did proceed, it turned right, but "failed to properly apply its turn signal within a hundred feet." Navarrete explained that the turn signal "came on as the vehicle was making the turn." Navarrete continued to follow the vehicle, which then made a left turn followed by a right turn. Both of those turns were made without turn signals. Navarrete testified that he and his partner, Officer Adkins, decided at that point to conduct a traffic stop "for the no turn signal." Before they had a chance to activate the patrol vehicle lights, the car turned into a driveway. As the patrol lights were activated, "three subjects" ran from the vehicle in different directions. One of those was Fregoso, a passenger in the vehicle. Navarrete chased Fregoso and subsequently arrested him for obstructing or delaying a peace officer.
When asked to further clarify the timing of the traffic stop, Officer Navarrete explained that the emergency lights were activated as the individuals exited the car. He testified, "It was ... real quick. They turned in and Officer Adkins was positioning behind the vehicle and we were ... in the process of calling out the traffic stop." Navarrete denied that the overhead lights had been activated before the vehicle turned into the driveway.
Officer Navarrete acknowledged that, at the time of the traffic stop, no one had any suspicion that a murder had occurred. Navarrete considered this a standard stop based on Vehicle Code violations. Navarrete had pursued Fregoso for one city block when he heard on the radio that there was a firearm in the vehicle. Navarrete apprehended Fregoso after chasing him "another city block."
At this point in the hearing, the trial court asked both counsel to argue "the initial detention." Defense counsel argued that "there must be something" other than a detention based on a failure to signal. Defense counsel stated that he intended to have another officer, Geivet, testify that he talked to Navarrete, and that Navarrete told him that the vehicle pulled into the driveway after the lights were activated. The prosecutor acknowledged that the report written by Geivet appeared to suggest this.
The court then stated that, assuming the lights were activated before the vehicle pulled into the driveway, the question was whether there was justification for the detention. Defense counsel argued that a violation of Vehicle Code section 22107, which governs turning movements and required signals, was not implicated if the movement of the vehicle did not affect other vehicles.
At this point, Officer Adkins was called to the stand. He testified that he was with Officer Navarrete at the time, and he was the driver of the patrol car. Adkins testified that, when the suspect car left the intersection, it turned right, "like it was trying to be evasive towards us." Adkins testified that he needed to increase his speed in order to follow the vehicle. Adkins explained that the distance between the right turn and the left was very short, and the car accelerated into the second turn without a signal. At that point, "it gave me probable cause to do a traffic stop." Adkins testified that, after the vehicle pulled into the driveway, he turned on his overhead lights as the individuals began to exit the vehicle. The individuals fled before Adkins could give any commands, and he then looked inside the vehicle and saw a shovel, pickax, and what appeared to be a modified rifle, which he broadcast over the radio.
After cross-examination by defense counsel, the trial court asked Officer Adkins, "At what point in time was the overhead lights activated, sir, relative to when ... the driver and the passenger basically ran from the scene of the vehicle? Was it before or after?" Adkins stated, "As I noticed they were getting out of the vehicle, thats when I put the overheads on."
Defense counsel called Officer Geivet, who testified that he had spoken to Navarrete regarding the facts and circumstances surrounding the stop of the vehicle. As a result of that talk and what he heard on the radio, Geivet prepared a report in which he stated that Officer Navarrete made a stop of a vehicle for improper turn signal and because of the abrupt turns the car was making. Defense counsel questioned Geivet on the timing of the stop. Geivet testified that Navarrete confirmed to him that he activated his overhead lights before the car pulled over, and that the occupants then fled.
The prosecutor cross-examined Geivet and asked if he specifically recalled Navarrete stating on the radio that the patrol car had activated its lights before the suspect car pulled into the driveway. Geivet stated, "Usually our procedure is to do that." But when asked again if Navarrete had stated over the radio, "lights have been activated, ... car pulled into the driveway and ... passengers run," Geivet said, "We never state that our overheads are activated." He acknowledged that he never heard over the radio that the lights were activated. In speaking to Navarrete, Geivet testified that Navarrete told him the lights came on and then the car pulled into the driveway.
Following argument by both counsel, the trial court, without explanation, denied the motion as to the search of the vehicle, but granted it as to the search of Fregoso.
Fregoso now contends the trial court erred in denying the motion to suppress because the stop of the vehicle was unreasonable. According to Fregoso, there was no violation of Vehicle Code section 22107, and therefore the items found in the vehicle were the fruits of that Fourth Amendment violation. We reject his claim.
B. Analysis
On appeal, after a trial courts denial of a motion to suppress, we review the evidence in the light most favorable to the trial courts ruling. (People v. Long (1987) 189 Cal.App.3d 77, 82-83.) Though the appellate court must uphold any factual findings, express or implied, that are supported by substantial evidence, it must assess independently, as a question of law, the question whether the challenged search or seizure conforms to the Fourth Amendment standard of reasonableness. (People v. Williams (1988) 45 Cal.3d 1268, 1301; People v. Loewen (1983) 35 Cal.3d 117, 123.)
Under the recent ruling in Brendlin v. California, supra, 551 U.S. at p. __ , decided during briefing in this case, the United States Supreme Court ruled that a passenger in a motor vehicle is detained when the vehicle is stopped by the police, and the passenger may challenge the constitutionality of the stop. "A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (People v. Souza (1994) 9 Cal.4th 224, 231.)
In making a determination of reasonable suspicion to justify a detention, reviewing courts
"must look at the `totality of the circumstances of each case to see whether the detaining officer has a `particularized and objective basis for suspecting legal wrongdoing. [Citation.] This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that `might well elude an untrained person. [Citations.] [T]he likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard [citation]." (United States v. Arvizu (2002) 534 U.S. 266, 273-274.)
Courts have long accepted that proof positive of a Vehicle Code violation is not required before a detention may be validly commenced. "A police officer may legally stop a motorist to conduct a brief investigation when he entertains a rational suspicion, based on specific facts, that a violation of the Vehicle Code or other law may have taken place ...." (People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 200.) "[A] police officer can legally stop a motorist only if the facts and circumstances known to the officer support at least a reasonable suspicion that the driver has violated the Vehicle Code or some other law." (People v. Miranda (1993) 17 Cal.App.4th 917, 926.) "A law enforcement officer may legally stop a motorist if the facts and circumstances known to the officer support a reasonable suspicion that the driver has violated the Vehicle Code or some other law." (People v. Hardacre (2004) 116 Cal.App.4th 1292, 1300.)
Vehicle Code section 22107 provides:
"No person shall turn a vehicle from a direct course or move right or left upon a roadway until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided in this chapter in the event any other vehicle may be affected by the movement."
In People v. Miranda, a police officer noticed a car in which the defendant, whom he recognized, was a passenger. The officer stopped the car after it made a left turn without signaling. On appeal, the defendant argued in part that the stop was improper because there was no testimony that the drivers unsignalled left turn was dangerous or that there was any other traffic around. (People v. Miranda, supra, 17 Cal.App.4th at pp. 921, 930.)
The Miranda court rejected this argument:
"[T]he failure to properly signal where another [vehicle] `may be affected by the movement is prima facie unsafe, for it creates the possible danger the statute was designed to prevent. Moreover, defendant is mistaken that there was no other traffic around. [The officer] was behind [the driver], and the primary benefit of the signal requirement is for the vehicles to the rear of the signalling vehicle. [Citation.]" (People v. Miranda, supra, 17 Cal.4th at p. 930.)
Fregoso attempts to distinguish Miranda by stating that Romeros vehicle made only one turn, the one in which he activated his signal late and, although he was being followed by the police, the turn had no effect on the officers. He claims the other two turns were not "true turns," but instead "movements ... made in a short distance that resembled an L-shape."
We fail to see the distinction between the facts here and those in Miranda and find the failure to signal gave the officers reasonable suspicion to stop the vehicle based on a violation of Vehicle Code section 22107. Thus, the trial court did not err in denying Fregosos motion to suppress evidence of items found in the vehicle.
5. Cumulative Error
In conclusion, Fregoso contends that the cumulative impact of all of the above errors deprived him of a fair trial. We have either rejected Fregosos claims of error and/or found that any errors, assumed or not, were not prejudicial. Viewed cumulatively, we find that any errors do not warrant reversal of the judgment. (People v. Stitely (2005) 35 Cal.4th 514, 560.)
DISPOSITION
The judgment is affirmed.
We Concur:
HARRIS, Acting P.J.
HILL, J.