Opinion
H024475.
7-2-2003
THE PEOPLE, Plaintiff and Respondent, v. CHARLES HALL, Defendant and Appellant.
A jury found defendant guilty of failing to register as a sex offender (Pen. Code, § 290, subd. (g)(2)) [count 2]) ; it found defendant not guilty of failing to inform law enforcement of his change of address or location (§ 290, subd. (g)(2) [count 1]). In a separate proceeding, the trial court found true allegations that defendant had suffered four strike convictions ( §§ 667, subds. (b)-(i), 1170.12) and that he had served two prior prison terms (§ 667.5, subd. (b)). After striking three of defendants prior strike convictions in the interests of justice ( § 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 917 P.2d 628), the trial court sentenced defendant to eight years in state prison. On appeal defendant contends he was denied his constitutional right to have the jury consider his defense of lack of knowledge. He also claims the prosecutor committed prejudicial misconduct by knowingly eliciting inadmissible testimony.
All further statutory references are to the Penal Code unless otherwise specified.
It was error for the prosecutor to charge defendant under the penalty subdivision of section 290, subdivision (g), rather than the respective substantive subdivisions (f)(1) and (a)(1)(A). (People v. McCleod (1997) 55 Cal.App.4th 1205, 1209, fn. 4.) Defendant does not raise any issue as to lack of notice because of the charging error, but we note that the error was harmless as the information gave adequate notice that defendant was being charged with failing to register and failing to notify a jurisdiction that he left the jurisdiction. (Chapman v. California (1967) 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824.)
I. Facts
Defendant had been convicted of a felony sex offense that required him to register as a sex offender pursuant to section 290.
Defendants first registration in Sunnyvale was on October 16, 1995, as a transient. He also had registered on July 22, 1996, as a transient in Sunnyvales Murphy Park. On August 28, 1997, he gave his address as 560 Britton in Sunnyvale; on September 28, 1998, he gave his address as 566 Mathilda in Sunnyvale; on April 24, 1999, he gave his address as 1109 Knickerbocker in Sunnyvale. Defendant last registered in Sunnyvale on June 29, 1999, as a transient.
Defendant first registered with the San Jose Police Department on July 27, 1999. At that time, he gave his address as 1174 Old Bayshore Highway. On September 1, 1999, he gave his address as 102 South 11th Street; on March 2, 2000, he gave his address as 156 North Fifth Street, which is the address for the Sober Living Environment. Defendants last registration with the San Jose police listed the 156 North Fifth address on July 10, 2000. The "Registration Notification Statement" that defendant had filled out for the San Jose Police Department in July 2000 had defendants initials next to a paragraph that read, in part, that "upon coming into or when changing my residence or location within any city . . . in which I am residing or located, I must register with the law enforcement agency having jurisdiction over my residence or location as a sex offender within five working days." (Italics added.) The official responsible for registering sex offenders in San Jose did not recall defendant having any questions when he last registered in July 2000.
Defendant began dating Cindy Viseth in July 2000. When defendant left the San Jose Sober Living Environment, the two lived together as transients. They mainly stayed in Sunnyvales Murphy Park. They sometimes stayed in other Sunnyvale locations, including in Fair Oaks Park and at some motels, and on occasion they stayed in Mountain View, but they never stayed in San Jose.
Sunnyvale Police Officer Basim Abu-Hamid first made contact with defendant in the summer of 2000 at Murphy Park. Thereafter, he had about 20 contacts with defendant in that park, and he often saw defendant with Viseth. During their first meeting, when Abu-Hamid ran a warrants check and discovered that defendant was required to register as a sex offender, defendant told the officer he was registered in San Jose, that he came to Sunnyvale to spend time with Viseth but took the bus back to San Jose in the evenings.
On at least two occasions, Abu-Hamid told defendant he needed to register with the Sunnyvale police if he was staying in Sunnyvale. Eventually, Abu-Hamid told defendant that he felt defendant "was residing in the park as transient, and if he was he needed to go down to the police department and register as a transient with the City of Sunnyvale." Abu-Hamid testified defendant never indicated that he did not understand the registration requirement or that he believed he could be transient for up to 90 days without registering when the officer was having these conversations with defendant regarding his registration requirements.
On November 23, 2000, Abu-Hamid contacted defendant in Murphy Park while Viseth was present and confronted defendant about his registration status. Defendant then said he and Viseth were living at 318 North Fair Oaks Avenue and that he had not lived at his last registration address since September. After checking at the police station and discovering that there was no current registration paperwork for defendant in Sunnyvale, Abu-Hamid returned to the park later that day and arrested defendant for failing to register as a sex offender. While seated in the patrol car, defendant told the officer, "Im just going to tell them that I didnt understand the rules."
Viseths mother lived at 318 North Fair Oaks in Sunnyvale. She had allowed defendant to have a piece of mail sent to her address, but defendant and her daughter did not live there.
Testifying in his own defense, defendant said he had registered as a sexual offender 16 times over the last five years, but he had never notified a jurisdiction that he was leaving because he did not know he was required to do so.
Defendant conceded that, on August 23, 1997, when he was arrested for being drunk in public in San Jose, the police told him that he had to register as a transient although he had only been transient for about a week. Defendant also testified that he registered as a transient on June 29, 1999, after the police contacted him and said he had to register as a transient, although he only had been transient for approximately eight days.
Defendant said he went to Sunnyvale with Viseth the first week of September 2000 after leaving the Sober Living Environment and that the two lived together as transients mainly in Murphy Park and Fair Oaks Park in Sunnyvale.
Defendant recalled telling Officer Abu-Hamid that he was registered in San Jose but not in Sunnyvale. He testified he was aware of his requirement to register as a sex offender but believed he had 90 days from the time he entered Sunnyvale as a transient to register. He admitted having read and understood the paragraph he had initialed that notified him of his duty to register within five working days of coming into a city but said "like the word transient and 90 days got locked in." He also admitted that Abu-Hamid twice had told him he had to go down to the police department to register if he was living in Sunnyvale.
At the time defendant last registered in 1999, former section 290, subdivision (c) required a person who is registering but has no residence address to update his or her registration no less than once every 90 days in addition to the requirement in subparagraph (A) to register within five working days of locating in a new city.
Defendant said he had between 20 and 25 contacts with police in the three months he was a transient in Sunnyvale and that, on a couple of occasions, police ran a check on him and returned his sex offender registration card without incident. He said the Sunnyvale officer who arrested him on November 17, 2000 for public intoxication did not investigate whether defendant was properly registered as a sex offender.
Defendant testified he had been drinking when he came into contact with Abu-Hamid on November 23, 2000, and that the officer had told defendant he needed to register but that he could do so the next day. However, Abu-Hamid came back later and arrested him. Defendant testified he "probably" said, "Im just going to tell them I didnt understand the rules" and that that would not have been "that far from the truth because I truly didnt." When he was asked "whos them" in the statement he had made, defendant testified, "I guess whoever was going to ask me." He added that, at the time he made that statement, he was feeling that he "had been betrayed" by Abu-Hamid, and he was "pretty pissed off."
On cross-examination, defendant admitted that, when he registered in San Jose on July 10, 2000, he "knew" that when he came into a city and was located there he had "five working days to register with that city."
In rebuttal, Sunnyvale Police Officer Charles OLeary testified that, while responding to a citizen complaint in September or October of 2002 regarding someone sleeping in the bathroom in Murphy Park, he had found defendant sleeping there. Defendant had told OLeary he was transient after the officer had run a warrants check and discovered that defendant was subject to registration as a sex offender. OLeary then told defendant that "every time he changed address or even location within the city he had to register within five days of changing locations, and as a transient he had to register every 90 days beyond that." OLeary added that he had had a similar conversation with defendant about the five-day registration obligation during the summer of 2000.
In surrebuttal, defendant said he did not recall having contact with OLeary but that he was "not saying that it didnt happen." He added that he has had "frequent contacts" with police and any encounter with OLeary was "not one of the ones that stood out."
II. Discussion
A. Adequacy of
Instructions on Actual Knowledge Requirement of Section 290
Relying upon People v. Garcia (2001) 25 Cal.4th 744 (Garcia ), defendant contends he was deprived of his right to have the jury resolve the knowledge element of the charge of failing to register in Sunnyvale. He claims the jury instructions on count 2 deprived him of a valid defense, namely, his lack of knowledge.
With regard to count 2, the trial court instructed the jury that several elements must be proved, including that defendant was required to register as a sex offender pursuant to section 290, that "(3) [he] willfully failed to register within five working days with the Chief of Police in which . . . city he temorarily [sic] resided, or if he had no residence, [he] willfully failed to register within five working days with the chief of police where he was located and; [P] (4) [he]had actual knowledge of his duty to register as a sexual offender." (Italics added.)
The jury also was instructed that "the word `willfully when applied to the intent which an act is done or omitted means with a purpose or willingness to commit the act or make the omission in question. [P] The word `willfully does not require any intent to violate the law or to injure another or to acquire any advantage. In the crime[] . . . charged in Count[] . . . 2, . . . failing to register as a sex offender with a felony conviction, there must exist a union or joint operation of act or conduct in general criminal intent. [P] General intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent, even though he may not have known his act or conduct was unlawful."
Defendant claims these instructions were misleading in that they told the jury "that it need only find that [defendant] knew in general of his duty to register with the Sunnyvale police department, but that his lack of actual knowledge of the time in which registration was required-his belief that he had ninety days in which do so-was of no consequence."
In Garcia, a jury convicted the defendant of willfully failing to register as a sex offender under former section 290, subdivisions (a)(1), (g)(2) as amended by Statutes 1994, chapter 867, section 2.7, pages 4389, 4392. The defendant claimed he was unaware of the registration requirement and that no one had advised him of it, but the jury apparently did not believe him. When the defendant was charged with the underlying sex offenses, the complaint included an advisement that he would be required to register under section 290 if convicted. The defendant testified he had not seen the complaint and no one had read him the advisement. During voir dire prior to his pleas of no contest, when the prosecutor said he would be required to register under section 290, the defendant said he understood. He stipulated this exchange had occurred but claimed he did not remember what happened the day of his plea and did not recall if the judge told him he would have to register. He said his attorney advised him to answer yes to all questions unless the attorney told him otherwise. The defendant was sentenced to prison. Prior to his release on parole, he signed a document that said he had been notified of his duty to register pursuant to section 290 and set forth the registration requirements in force at the time, and the official who gave defendant this notice certified he had notified defendant of his duty to register. Although the defendant recalled signing documents, he testified he did not read the notice of registration requirement before signing and claimed no one read this document to him or explained his duty to register. Once released from prison, the defendant was deported to Mexico, but he returned illegally and lived in San Francisco for several months. He returned to Mexico but again returned illegally and moved to San Rafael in May 1995. He admitted he never registered as a sex offender when living in San Francisco or San Rafael. In September 1995, he was stopped for a traffic violation; unable to produce a drivers license, he initially gave the officer a false name and birth date. At trial, he testified he provided a false name because he did not want to be deported. In December 1995, an officer contacted the defendant and asked if he was aware of his obligation to register. When the defendant said he "wasnt really sure" (Garcia, supra, 25 Cal.4th at p. 749) if he had been informed of the requirement, the officer explained it. The defendant admitted living in San Rafael for about three weeks and made an appointment to register a few days later; after he registered, he was arrested for parole violations.
The registration requirement applicable to the defendant in Garcia was contained in section 290, former subdivision (a)(1), as amended in 1994. That provision, in pertinent part, provided that a sex offender is required "for the rest of his . . . life while residing in California . . . to register . . . within 14 days of coming into any county [or] city . . . in which he . . . temporarily resides or is domiciled for that length of time." ( § 290, former subd. (a)(1), as amended by Stats. 1994, ch. 867, § 2.7, p. 4389.) Persons subject to section 290 were required to inform the appropriate law enforcement agency of any change of "residence address" within 10 days. (§ 290, former subd. (f), as amended by Stats. 1994, ch. 867, § 2.7, p. 4392.)
The Garcia court concluded "the courts instructions on `willfulness should have required proof that, in addition to being formally notified by the appropriate officers as required by section 290, in order to willfully violate section 290 the defendant must actually know of his duty to register," that "the court erred in giving an `ignorance of the law is no excuse instruction (CALJIC No. 4.36), which on its face would allow the jury to convict defendant of failing to register even if he were unaware of his obligation to do so," and that, "in the registration act context, the jury must find actual knowledge of the act s legal requirements." (Garcia , supra, 25 Cal.4th at p. 754, italics added.) The court explained that "the word `willfully implies a `purpose or willingness to make the omission. ( § 7.) Logically one cannot purposefully fail to perform an act without knowing what act is required to be performed. As stated in People v. Honig (1996) 48 Cal.App.4th 289, 334, `the term "willfully" . . . imports a requirement that "the person knows what he is doing." [Citation.] Consistent with that requirement, and in appropriate cases, knowledge has been held to be a concomitant of willfulness. [Fn. omitted.] Accordingly, a violation of section 290 requires actual knowledge of the duty to register." (Id. at p. 752.) The court then noted that "[a] jury may infer knowledge from notice, but notice alone does not necessarily satisfy the willfulness requirement." (Ibid.)
The Garcia court explained that "the actual knowledge test satisfies constitutional requirements. The high court has held that due process principles forbid applying the proscriptions of a registration act to one having no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge. (Lambert v. California (1957) 355 U.S. 225, 227, 2 L. Ed. 2d 228, 78 S. Ct. 240 (Lambert ).) As Lambert stated, `Registration laws are common and their range is wide. [Citations.] Many such laws are akin to licensing statutes in that they pertain to the regulation of business activities. But the present ordinance is entirely different. Violation of its provisions is unaccompanied by any activity whatever, mere presence in the city being the test. Moreover, circumstances which might move one to inquire as to the necessity of registration are completely lacking. . . . This appellant on first becoming aware of her duty to register was given no opportunity to comply with the law and avoid its penalty, even though her default was entirely innocent. She could but suffer the consequences of the ordinance, namely, conviction with the imposition of heavy criminal penalties thereunder. We believe that actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand. . . . Where a person did not know of the duty to register, and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. (Id. at pp. 229-230; see People v. Franklin (1999) 20 Cal.4th 249, 253, 975 P.2d 30.)" (Garcia , supra, 25 Cal.4th at pp. 752-753.)
In sum, the Garcia court observed that, although the trial court did not clearly omit the actual knowledge requirement, its instructions were potentially misleading. It further pointed out that during argument, when defense counsel started to argue defendant was unaware of the registration requirement, the prosecutor objected that the argument misstated the law, and the trial court agreed. Later, the prosecutor argued "lack of knowledge was not a valid defense" without objection. The high court concluded that, "on balance, the jury was erroneously led to believe that it did not have to find actual knowledge in order to find defendant guilty." (Garcia , supra, 25 Cal.4th at p. 755, italics added.) Nevertheless, the court found that the trial courts failure to instruct the jury that the defendant had "willfully" violated the registration requirement of section 290 only if he actually knew of his duty to register was harmless beyond a reasonable doubt, since there was strong evidence the defendant knew of the registration requirements and the jury was instructed that it had to find he was informed of his duty to register. (Garcia , supra, 25 Cal.4th at p. 755.)
In People v. Vigil (2001) 94 Cal.App.4th 485, 502-503, this court found the same type of instructional deficiency harmless beyond a reasonable doubt because the evidence at trial showed that the defendant was properly notified of his duty, and the fact that he previously registered established that he knew that he was required to do so.
By contrast to Garcia, on the record before us, we conclude that, on balance, the jury was not erroneously led to believe that it did not have to find actual knowledge in order to find defendant guilty.
We find it significant that, with regard to count 1, the jury was informed that two of the elements of that offense were that defendant "willfully fails to inform in writing within five working days the law enforcement agency or agencies with whom he last registered of any change in his residence address or location" and that he "had actual knowledge of his duty to register as a sexual offender." (Italics added.) The word "willfully" was defined for the jury with regard to both counts 1 and 2, and the instruction on general intent was given with regard to both counts. With regard to count 1, defendant testified he was aware of his general duty to register as a sex offender and had done so 16 times, but he never had notified a city when he left because he was unaware of his duty to do so. Defendant notes in his opening brief that, with regard to count 1, "clearly the jury believed that [his] lack of knowledge of a duty to inform the San Jose police department that he had left the residence in San Jose constituted a defense: they [sic] acquitted him on that charge." As defendant in essence concedes, his acquittal on count 1 shows that his jury in fact understood that the instructions regarding actual knowledge, general intent, and the definition of "willfully" required actual knowledge of the specific requirements of the registration statute at issue rather than simply a general awareness of a general duty to register.
We also find it significant that, when the prosecutor asked Officer Abu-Hamid, if he "could . . . tell" whether defendant "was making the statement [Im just going to tell them I didnt understand the rules] as if indicating this will be my excuse, or if he really didnt understand the rules by the way he said it in the context," the trial court struck the question and told the jury, "The jury is to disregard that. Thats the ultimate-goes to the ultimate fact finding of the jury."
We further find significance in the fact that the prosecutor in this case recognized that she had to prove that defendant not only had knowledge of his general duty to register but also that he had actual knowledge of his duty to register at a new location in Sunnyvale as a transient within five working days and his duty to advise the San Jose police that he was changing his address. She told the jury that she would "talk about the [actual knowledge] fourth element with both counts together" and concluded that portion of her argument by telling the jury, "I submit that all proves his actual knowledge of the requirement to register and [that] he changed his address." With regard to count 2, she argued defendant "knew he had five days from all the notifications that he was given and from the officers telling him to get down there," emphasizing that defendant had been told to go register in Sunnyvale within five days by Officer OLeary as well as by Officer Abu-Hamid.
Since the instructions in question applied to both counts 1 and 2 and since the trial court told the jury the ultimate fact it had to find was whether or not defendant misunderstood the specific registration requirements at issue even if defendant was aware of general requirement to register, we conclude that, on balance, the jury was not erroneously led to believe that there was no need to find actual knowledge of the specific five-day requirement at issue in count 2 in order find defendant guilty of count 2.
However, assuming arguendo the jury was so misled, we are convinced that any error in the jury instructions on the issue of actual knowledge with regard to count 2 was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.)
With regard to count 2, the prosecution presented very strong evidence that defendant had actual knowledge of the registration requirements for transients moving into a new city. Officer OLeary testified he specifically told defendant about the five-day requirement in the summer of 2000 and again in September or October 2000, and the officer who handled defendants registration in San Jose in July 2000 testified that defendant had read and initialed the form containing the five-day provision at issue and had not asked any questions about the form at that time. In his own trial testimony, defendant admitted he had moved to Sunnyvale after he left San Joses Sober Living Environment around the first week of September of 2000 because he knew he was "going to be kind of stuck in a homeless situation" and preferred to be homeless in Sunnyvale than in downtown San Jose. He testified that until he was arrested in November 2000, he and Viseth had lived mainly in the public bathrooms of Sunnyvales parks. The only evidence suggesting that defendant did not actually know of the requirement to register within five working days of coming to Sunnyvale was defendants testimony that, although he was "aware generally of [his] requirement to register as a sex offender" and "felt [he] had to register sooner or later with Sunnyvale," he "was under the impression there was a time frame" of "90 days" "from the time I entered Sunnyvale as a homeless person." He testified he got that impression when he "read it on the . . . form, where you have to initial all that stuff, and . . . like the word transient and 90 days got locked in. I thought I was-I find out later, you know, but at that point in time I actually-I thought I was right." However, defendant later admitted that when he had registered in July 2000 in San Jose, he had read the form that stated he had been notified of his duty to register as a convicted sex offender pursuant to section 290 and then went on to specify exactly what that duty was, including the requirement to register within five working days after moving into a city, and that on July 10, 2000, the date he signed that form, he understood the requirement that he had to register within five working days after moving into a city as a transient. Since defendant admitted he had read and understood the five-day registration requirement in July 2000 and Officer OLeary testified he orally had reiterated that requirement to defendant on at least two occasions thereafter, here, as in People v. Vigil, supra, 94 Cal.App.4th at page 503, we are convinced "there is no reasonable possibility that the omitted instruction would have caused any juror to doubt whether defendant was aware of his registration and notification obligations."
B. Prosecutorial Misconduct
Defendant next contends the prosecutor improperly elicited testimony from Officer Abu-Hamid that, "in his opinion, [defendants] statement immediately following his arrest indicating that he misunderstood the rules was not a sincere statement, but an attempt to come up with an excuse." Defendant then argues that, "although the officers opinion testimony was ultimately ordered stricken," that opinion testimony "was so egregious as to make `unringing the bell an absolute impossibility."
During direct examination, the prosecutor asked Officer Abu-Hamid whether, from "the way" defendant "phrased" and "said" his statement "Im just going to tell them I didnt understand the [section 290] rules," "was it your opinion that he was stating this is going to be my excuse or that he really didnt understand the rules?"
When defense counsels objection that the question called for a conclusion and speculation was overruled on the ground that "thats a lay persons opinion," Abu-Hamid testified, "My opinion was that [defendant], hes a pretty sharp guy. Hes not a dummy. Every time I talked to him hes never indicated that he has a learning disability. He seems pretty articulate, sharp guy. My opinion was that, yes, he did understand the rules, and when he made that statement, I-again, he could be saying he doesnt understand the rules. My opinion was that he did understand the rules. He was trying to use that as an excuse."
In response to another defense objection, the trial court then struck that answer because the "question had to do with the way it was said, not based on past history. I ll admonish the jury to disregard the answer." (Italics added.)
The prosecutor then stated her question again, asking Abu-Hamid whether, in his opinion, "the way [defendant] said it and the context of what else he was saying, did it appear as if he was stating thats going to be my excuse or that he truly really didnt understand the rules?"
In overruling defense counsels objection to this question on the grounds of relevance and that the question was compound, the trial court commented that "theres a way a person says it, their inflection, that has meaning in the context of the conversation" and gave an example. Abu-Hamid then testified, "It wasnt a voice inflection."
When the prosecutor next asked whether Abu-Hamid "could . . . tell" whether defendant "was making the statement as if indicating this will be my excuse, or if he really didnt understand the rules by the way he said it in the context," the trial court struck the question and told the jury, "The jury is to disregard that. Thats the ultimate-goes to the ultimate fact finding of the jury." (Italics added.)
The prosecutor then began to ask, "From the way he said it-" but she stopped herself and asked if counsel could approach the bench.
After an unrecorded discussion at the bench, the questioning continued as follows: "Q. [The Prosecutor]: Again, Officer, just basing it on the way that the defendant made that statement in the car and what he said . . ., from the context of what was going on in the car and from the way the defendant said it, did it sound as if he was saying this is going to be my excuse, or did it sound as if he was really telling you he didnt understand the rules? What did it sound like to you? [P] A. Excuse. [P] Q. That it was going to be an excuse hes going to use? [P] Yes. [P] [Defense Counsel]: Your Honor, I move to strike again. There is no foundation for this opinion. Nothing. [P] The Court: Subject to foundation. [P] [The Prosecutor]: What made you believe that he was going to be using it as an excuse from the way he said it and the context of the conversation? [P] A. I apologize. I have to bring up based upon my previous experience with [defendant] when Im saying I dont think hes a dummy. [P] [The Prosecutor]: Can I rephrase? [P] Q. [The Prosecutor]: Did he ever say to you why are you arresting me, officer? I dont understand the rules? [P] A. No. [P] Q. Did he ever say, come on, I have ninety days to register? I havent been transient for ninety days yet? [P] A. No. [P] Q. So was it your opinion based on things said and not said and the way he said it in the vehicle that you believed it was his statement of excuse? [P] [Defense Counsel]: Your Honor, again-[P] The Court: Sustain the objection. I m going to strike the officer s opinion though these last two answers may remain. Admonish the jury again that has been stricken." (Italics added.) "` "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.]"" (People v. Ayala (2000) 23 Cal.4th 225, 284, brackets in original.) Here, however, in light of defendants repeated objections to the challenged questions eliciting opinion testimony and the trial courts order striking most of the responses to those questions and its admonition to the jury to disregard those questions and answers, we conclude defense counsel was excused from the legal obligation to object again on the grounds of prosecutorial misconduct and to seek yet another admonition in front of the jury since it is likely any attempt on his part to object on that ground "would have been futile and counterproductive to his client." (People v. Hill (1998) 17 Cal.4th 800, 821, 952 P.2d 673.) Accordingly, we will address the prosecutorial misconduct claim regarding the prosecutors attempt to elicit opinion testimony its merits. In addition, we choose to briefly address defendants concomitant claim that the prosecutor improperly referred to defendants statement as a "scam" and a "ploy" during closing argument despite defendants failure to object or to seek an admonition regarding those remarks at the time they were made.
We are not persuaded by defendants claim that Officer Abu-Hamids lay opinion was "patently" inadmissible and that, therefore, the prosecutors attempt to question Abu-Hamid regarding his opinion whether defendants statement "was not a sincere statement, but an attempt to come up with an excuse" constituted misconduct. In fact, when the prosecutor first asked the officers opinion on that issue, the trial court overruled the defense objection and ruled that the question as asked in fact properly did call for "a lay persons opinion." The court only struck the officers next answer because the officers testimony revealed that he had based his opinion "on past history" and not on "the way" in which defendants statement was said. When the prosecutor rephrased the question to ask for the officers opinion based upon "the way" defendant had said the statement "and the context of what else he was saying," the court again ruled that the question was proper.
It was only when the prosecutor asked for the officers opinion as to whether defendant made the statement "as if indicating this will be my excuse" without asking for an opinion based upon how the statement was made or how it was said in the context of the conversation that the trial court sustained defendants objection and told the jury to disregard to answer.
After that objection was sustained, the prosecutor started to rephrase the question but then asked if the parties could approach the bench. After that question, the prosecutor rephrased the question to ask whether, based upon "the context of what was going on in the car and from the way the defendant said it, . . . did it sound as if [defendant] was really telling you he didnt understand the rules?" When the officer answered that it sounded to him that it was "going to be an excuse" defendant was going to use, the trial court ruled it would only admit this opinion subject to the prosecutor laying the proper foundation. However, when the officer next was asked what made him believe it was only an excuse, the officer responded that he was basing his opinion upon his prior experiences with defendant. Based upon that response, the trial court struck the officers opinion testimony since the opinion was not based upon the way the defendant had said the statement or the context of the conversation.
We find nothing in the record that suggests that the prosecutor knew the officers response to her question would not produce an answer that would have been the type of lay opinion testimony the trial court had ruled admissible and that she had purposefully asked her questions in order to get inadmissible opinion evidence before the jury. When viewed in the context of the trial courts rulings regarding the admissibility of lay opinion testimony regarding how a statement was made, the prosecutors conduct in questioning Officer Abu-Hamid did not "comprise[] a pattern of conduct so egregious that it infected the trial with such unfairness as to make the conviction a denial of due process" nor did it involve "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." (People v. Ochoa (1998) 19 Cal.4th 353, 427, 966 P.2d 442, internal quotation marks omitted.) Accordingly, we conclude no misconduct occurred under state or federal standards during the questioning of Abu-Hamid.
We similarly find no prosecutorial misconduct during argument to the jury. Evidence was presented that defendant never asked why he was being arrested, that he never told Officer Abu-Hamid that he did not understand the rules, and that he never said he had 90 days to register or that "`I havent been transient for ninety days yet." In this context, the prosecutor was entitled to argue that defendants statements regarding his lack of knowledge were a "scam" and a "ploy." (People v. Wharton (1991) 53 Cal.3d 522-527, 280 Cal. Rptr. 631, 809 P.2d 290 [prosecutor given wide latitude during argument and argument "may be vigorous as long as it amounts to fair comment on the evidence" and reasonable inferences or deductions drawn therefrom].)
In any event, assuming arguendo the prosecutor did commit misconduct by intentionally eliciting inadmissible opinion testimony and that the error was exacerbated by the prosecutors closing argument references to a "scam" or a "ploy," reversal is not required. The offending questions that sought to elicit inadmissible opinion testimony were stricken, and the jury repeatedly was admonished to disregard those portions of Officer Abu-Hamids testimony to which the court had sustained defendants objections and those questions that addressed the ultimate factual issue before the jury. We presume the jurors understood and followed those instructions. (People v. Holt (1997) 15 Cal.4th 619, 662, 937 P.2d 213.) In addition, the jury was instructed that statements of counsel were not evidence (CALJIC No. 1.02) and that it was to determine the facts based upon "the evidence received in this trial and not from any other source." (CALJIC No. 1.03.) Furthermore, as discussed at length in our discussion of the challenged instructions, the evidence was overwhelming that defendant actually knew he was required to register within five working days after entering the city of Sunnyvale as a transient and that his statement to the contrary was a calculated ploy to convince others, including the jury, that he should be excused his willful failure to register within the specified time period. Accordingly, we conclude the alleged errors by the prosecutor were harmless under both federal and state standards. (See People v. Roybal (1998) 19 Cal.4th 481, 520, 966 P.2d 521.)
III. Disposition
The judgment is affirmed.
We concur: Rushing, P.J., and Elia, J.