Opinion
A152968
09-20-2019
THE PEOPLE, Plaintiff and Respondent, v. ERIN ELIZABETH HALLOCK, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR-224602)
Defendant Erin Hallock appeals her conviction for child endangerment, alleging a litany of errors requiring reversal, including improper joinder, improper admission of evidence, two instances of erroneous jury instructions, and various forms of prosecutorial misconduct. We find her claims unpersuasive and shall affirm.
Hallock also appeals her conviction for identity theft with a prior offense. Because Hallock was not advised that she was waiving her right to a fair determination of the truth by admitting her prior offense of identity theft on the record, we remand the case to obtain a properly advised admission or to hold a trial to determine whether she was previously convicted.
I. BACKGROUND
A. The Charges
The Solano County District Attorney filed an amended information that charged Hallock with (1) endangering the health of a child (Pen. Code, § 273a, subd. (a)); (2) identifying information theft with a prior conviction for that offense (§ 530.5, subd. (c)(2)); and (3) misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)).
Undesignated statutory references are to the Penal Code.
B. The Evidence Presented at Trial
On March 10, 2015, Stephanie Dempsey called 911 to report that Hallock was screaming from outside of a house nearby that her baby drowned. Hallock told a responding police officer that she had left her baby unattended in a bathtub with the water running while she answered the door and checked Facebook. When the first paramedic arrived, the baby had been without oxygen for some time. The baby died in the hospital four days later.
Based on her erratic behavior and dilated pupils, several of the officers who interviewed Hallock suspected that she was under the influence of a central nervous system stimulant, like methamphetamine. The officers did not perform any field sobriety tests on her to confirm their suspicions because it did not seem appropriate given the circumstances.
After Hallock went to the hospital to be with her child, the police searched her house. They found a box of what appeared to be forged California identification cards, other documents used to steal victims' identities, as well as two small bags of methamphetamine. A district attorney investigator reviewed the Internet history on Hallock's computer and found that it had visited websites commonly used for personal identity theft.
C. Verdict and Sentencing
The jury found Hallock guilty on all counts. The trial court sentenced Hallock to six years in prison for the child endangerment charge and an additional eight months for the identity theft charge. The court also sentenced Hallock to one year for the possession of methamphetamine charge to be served concurrently.
II. DISCUSSION
A. Joinder
Before trial, Hallock moved to sever the child endangerment charge from the other two charges because joinder would deny her a fair trial. The trial court denied the motion because the charges all arose from the same facts. Hallock now advances three lines of argument that the trial court erred in granting joinder. We see no merit in the arguments.
First, Hallock argues that section 954 did not permit joinder in the first place. "Section 954 provides for joinder of 'two or more different offenses connected together in their commission . . . or two or more different offenses of the same class of crimes or offenses.' " (People v. Valdez (2004) 32 Cal.4th 73, 119.) " 'Offenses of the same class are offenses which possess common characteristics or attributes.' " (People v. Landry (2016) 2 Cal.5th 52, 76.) Respondent concedes that the charges in this case are not of the same class, and we agree. But "[o]ffenses 'committed at different times and places against different victims are nevertheless "connected together in their commission" when they are . . . linked by a " 'common element of substantial importance.' " [Citations.]' " (People v. Mendoza (2000) 24 Cal.4th 130, 160 (Mendoza).) "[U]se of a defendant's home to commit the crime" is a common element for the purposes of justifying joinder. (People v. Leney (1989) 213 Cal.App.3d 265, 269; see also Aydelott v. Superior Court (1970) 7 Cal.App.3d 718, 722-723.) Because the alleged crimes here were committed in Hallock's home, joinder was within the trial court's discretion.
Even if joinder was permissible under section 954, Hallock argues that the trial court abused its discretion in refusing to sever the child endangerment count from the other two counts. In general when we assess a claimed abuse of discretion for refusal to sever, we must bear in mind that consolidating charged offenses " 'is the course of action preferred by the law.' " (People v. Soper (2009) 45 Cal.4th 759, 772; see also People v. Ochoa (1998) 19 Cal.4th 353, 409 ["Because consolidation ordinarily promotes efficiency, the law prefers it"].) Joinder saves judicial time and resources and also saves public funds. (Soper, at p. 772; Ochoa, at p. 409.) Thus, a defendant can only defeat consolidation of properly joined charges by a "clear showing of prejudice" to establish that the trial court abused its discretion in denying the defendant's severance motion. (Williams v. Superior Court (1984) 36 Cal.3d 441, 447 (Williams); see also Mendoza, supra, 24 Cal.4th at p. 160; People v. Mason (1991) 52 Cal.3d 909, 935.) "A bald assertion of prejudice is not enough." (People v. Kemp (1961) 55 Cal.2d 458, 477.)
The specific factors guiding our assessment of a discretionary joinder decision are "(1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case." (Mendoza, supra, 24 Cal.4th at p. 161.)
The first step in assessing whether a trial on combined charges was prejudicial is to determine whether evidence from each case would be admissible under Evidence Code section 1101. If so, the inference of prejudice is dispelled. (People v. Balderas (1985) 41 Cal.3d 144, 171-172 (Balderas); see also People v. Walker (1988) 47 Cal.3d 605, 622-623; Williams, supra, 36 Cal.3d at p. 448.) A lack of cross-admissibility, however, does not necessarily mean the trial judge abused his or her discretion by joining the cases for trial. (Balderas, at pp. 172-173.) "Proof of other crimes, though inadmissible to show a propensity to commit crimes, may be admissible for other purposes when its probative value to establish a fact at issue outweighs its possible prejudicial effect." (People v. Garrison (1967) 252 Cal.App.2d 511, 514.)
Applying these factors, we see no abuse of discretion here. There was significant cross-admissibility on two of the three charges. To find Hallock guilty of child endangerment, the prosecutor had to prove that she acted with criminal negligence. (CALCRIM No. 821.) "A person acts with criminal negligence when: [¶] 1. [h]e or she acts in a reckless way that is a gross departure from the way an ordinarily careful person would act in the same situation; [¶] 2. [t]he person's acts amount to disregard for human life or indifference to the consequences of his or her acts; [¶] AND [¶] 3. [a] reasonable person would have known that acting in that way would naturally and probably result in harm to others." (Ibid.) Had the charges been brought in separate actions, the evidence in the drug possession case would have helped establish whether Hallock was under the influence of methamphetamine. Because of her dilated pupils and erratic behavior at the scene, the responding officers suspected Hallock was under the influence of a central nervous system stimulant. If she was—and the stimulant was methamphetamine—her drug use was relevant both to the alleged criminal negligence and the alleged drug possession.
The evidence bearing on identity theft, to be sure, was not cross-admissible as to either of the other two charges. But "a 'lack of cross-admissibility is not, by itself, sufficient to show prejudice and bar joinder.' " (People v. Johnson (2015) 61 Cal.4th 734, 751.) "The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried." (People v. Bean (1988) 46 Cal.3d 919, 938.) In considering the other factors of improper joinder—whether the evidence would inflame a jury, whether a weak case has been joined to a strong case, or whether one of the charges is a capital offense—we find no prejudice. (People v. Lynch (2010) 50 Cal.4th 693, 736.)
Hallock argues that the identity theft claim may have inflamed the jury into concluding that she had a propensity toward criminal neglect of her child. The jury had to decide whether leaving a baby unattended in a bathtub amounted to criminal negligence, or, if the jury determined that she was under the influence, whether caring for a baby while under the influence of methamphetamine was criminally negligent. Whether the jury thought that Hallock was a bad mother for other reasons should not have been relevant in determining whether those specific alleged acts rose to the level of criminal negligence. She essentially argues that when a jury knows that a defendant has committed one crime, it is more likely to assume commission of another. But adopting that notion as improperly inflammatory would preclude joinder between any two crimes. Since " '[t]he law prefers consolidation of charges' " (People v. Manriquez (2005) 37 Cal.4th 547, 574), that argument proves too much.
Turning to the weak case/strong case factor, Hallock contends that joining the claims would improperly join a strong case of identity theft with a weak case of child endangerment. We cannot agree. Considering the undisputed evidence that she left her seven-month-old baby unattended in a bathtub with the water running, this was not a weak case of child endangerment. As for the judicial economy factor, that too militated in favor of joinder. Holding a joint trial spared Officer Poyser from having to testify in two trials, since the officer both interviewed Hallock and discovered the identification documents. It also saved the court from having to select two juries rather than one. These efficiencies demonstrate why joinder is generally preferred.
Finally, as a last resort, Hallock invokes the rule that "[a] pretrial ruling that was correct when made can be reversed on appeal . . . if joinder was so grossly unfair as to deny due process." (People v. Stitely (2005) 35 Cal.4th 514, 531.) Hallock argues that she had no chance at trial because, once the evidence of identity theft and drug use came in, she was smeared as a "bad" mother whose poor character showed her to be more capable of criminal negligence rather than regular negligence. We are unpersuaded. Taking all the relevant factors into account, we conclude that the joinder was not "so grossly unfair as to deny due process." (Ibid.)
B. Evidence of Prior Drug Use
Hallock's probation officer, Alisa Thompson, and Child Welfare Services (CWS) social worker, Denise Manuel, testified about the conversations that they had with her regarding her drug use. Hallock made motions in limine to exclude evidence that she was on probation and had been investigated by CWS. The court admitted the testimonies because they supported the prosecutor's claim that Hallock knew of the dangers of using drugs while caring for a child. Hallock now asserts that admission of testimony from these two witnesses was error because it was irrelevant, lacking in foundation, and prejudicial. As is always the case with matters of admissibility, our review is for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717 ["[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence."].) We find no such abuse here.
To prove criminal negligence, the prosecutor had to show that Hallock committed "aggravated, culpable, gross or reckless conduct that is such a departure from that of the ordinarily prudent or careful person under the same circumstances as to be incompatible with a proper regard for human life." (People v. Burton (2006) 143 Cal.App.4th 447, 454.) "In determining whether a reasonable person in defendant's position would have been aware of the risks, the jury should be given relevant facts as to what defendant knew, including his actual awareness of those risks." (People v. Ochoa (1993) 6 Cal.4th 1199, 1205, original italics.) Evidence is relevant if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.)
Hallock contends that because the witnesses did not testify that they had specifically warned her of the risks of drug use while caring for a baby, their testimony was not relevant. But the testimony from both Thompson and Manuel tended to show that Hallock knew of the risks, whether or not she was warned. Both witnesses testified that Hallock said that she wanted to stop using drugs for the sake of her son, and Thompson testified that Hallock told her that she only used drugs when her family was caring for her child. Since Hallock's awareness of the risks of her actions bore directly on the issue of criminal negligence, the challenged testimony was clearly relevant.
Hallock argues, nonetheless, that the testimony lacked any foundation in expert opinion about the effects of drug use on her ability to care for a child. We reject that argument as well. "The effect of drugs, while certainly a proper subject of expert testimony, has become a subject of common knowledge among laypersons." (People v. Yeoman (2003) 31 Cal.4th 93, 162.) Hallock also argues that the trial court failed to weigh probative value versus the probability that testimony about methamphetamine use would "(a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) Defense counsel objected twice on Evidence Code section 352 grounds, and the trial court overruled the objection each time, noting the relevance of the evidence, and on one of the two occasions excluding related evidence on the ground it was too prejudicial, reflecting that the court was well aware of and was considering the relevant factors in deciding whether to admit the evidence. The trial court having taken the appropriate considerations into account and exercised its discretion, we have no basis to second-guess its rulings on appeal.
C. Instruction on Probation Officer Testimony
Hallock's probation officer testified about her interactions with Hallock while she was on probation. After the testimony, the trial court instructed the jury: "please disregard the fact that Ms. Hallock was on probation. That's not relevant to our case. The only reason that the testimony of Ms. Thompson is relevant is to the fact that the defendant was on notice as to the dangers of using illegal substances around a child." Hallock now contends that the instruction improperly dictated to the jurors how they should interpret the relevancy of the evidence, depriving them of their factfinding power. This is a mischaracterization.
While "the jurors decide the facts and the court instructs them on the law" (People v. Cruz (2001) 93 Cal.App.4th 69, 72), "[t]he court may make any comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the cause." (Cal. Const., art. VI, § 10.) "The trial court may not, in the guise of privileged comment, withdraw material evidence from the jury's consideration, distort the record, expressly or impliedly direct a verdict, or otherwise usurp the jury's ultimate factfinding power." (People v. Rodriguez (1986) 42 Cal.3d 730, 766.) The trial court's comment that "[t]he only reason that the testimony of Ms. Thompson is relevant is to the fact that the defendant was on notice" was appropriate under this standard when taken in context. The purpose of the comment was to stem potential jury bias against a defendant on probation and direct the jury's attention towards the appropriate use of the testimony rather than deprive them of the ability to determine whether the defendant was on notice.
Moreover, considering the rest of the relevant jury instructions, we think Hallock's interpretation of the trial court's comment is strained. "In reviewing a claim of error in jury instructions in a criminal case, this court must first consider the jury instructions as a whole to determine whether error has been committed." (People v. Moore (1996) 44 Cal.App.4th 1323, 1330.) The trial court in the present case instructed the jury with CALCRIM No. 105 — Witnesses: "You alone must judge the credibility or believability of the witnesses" and CALCRIM No. 200 — Duties of Judge and Jury: "You must decide what the facts are. . . . Do not assume just because I give a particular instruction that I am suggesting anything about the facts." Interpreting the trial court's comment as a directive on what the facts imply would contradict the jury instructions empowering the jury to judge the credibility of the witness and decide what the facts are. The innocuous interpretation is more likely.
"Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation." (People v. Laskiewicz (1986) 176 Cal.App.3d 1254, 1258.) Since the trial court's comment can be interpreted to support the judgment, we find no error.
D. Instruction on Child Endangerment
Section 273a, subdivision (a) states child endangerment is committed by: "[a]ny person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered." CALCRIM No. 821 states that: "To prove that the defendant is guilty of [child abuse], the People must prove that: <Alternative A—inflicted pain> [1. The defendant willfully inflicted unjustifiable physical pain or mental suffering on a child;] <Alternative B—caused or permitted to suffer pain> [1. The defendant willfully caused or permitted a child to suffer unjustifiable physical pain or mental suffering;] <Alternative C—while having custody, caused or permitted to suffer injury> [1. The defendant, while having care or custody of a child, willfully caused or permitted the child's person or health to be injured;] <Alternative D—while having custody, caused or permitted to be placed in danger> [1. The defendant, while having care or custody of a child, willfully caused or permitted the child to be placed in a situation where the child's person or health was endangered;] [AND] 2. The defendant (inflicted pain or suffering on the child/ [or] caused or permitted the child to (suffer/ [or] be injured/ [or] be endangered)) under circumstances or conditions likely to produce (great bodily harm/ [or] death)(;/.) <Give element 3 when giving alternatives 1B, 1C or 1D> [AND] [3. The defendant was criminally negligent when (he/she) caused or permitted the child to (suffer/ [or] be injured/ [or] be endangered)(;/.)]." (Italics and bolding omitted.)
The trial court gave the jury the following instruction: "To prove that the defendant is guilty of this crime, the People must prove that: [¶] [(1)] [t]he defendant, while having care or custody of a child, willfully caused or permitted the child to be placed in a situation where the child's person or health was endangered; [¶] AND [¶] (2) the defendant caused or permitted the child to suffer or be injured under circumstances or conditions likely to produce great bodily harm or death; [¶] AND [¶] (3) the defendant was criminally negligent when she caused or permitted the child to suffer or be injured." Hallock points out that the first element of the jury instruction refers to the fourth statutory definition of child endangerment while the second and third elements of the jury instruction refer to the combined first and third statutory definitions of child endangerment. She contends that by blurring the distinctions between and combining the means of committing the offense in the instruction, the court allowed the jury to return a verdict even if it did not agree on the elements.
Assuming arguendo the instruction was erroneous, it was harmless even under the strictest standard of review of judicial error reserved for federal constitutional error. That standard only allows the appellate court to uphold a trial court's error as harmless when it can "declare a belief that it was harmless beyond a reasonable doubt." (Chapman v. California (1967) 386 U.S. 18, 24.) Hallock did not dispute that she left her baby alone in a bathtub or that her actions caused the baby to drown. That fact—which was the only act charged under the statute—unquestionably satisfies every element related to the criminal act. Whether Hallock's mental state rose to the level of criminal negligence was the only contested question for the jury to decide. The trial court's formulation of the instruction did not impact the answer to that question, so the error was harmless beyond a reasonable doubt. Under any standard of review the error does not warrant a reversal of the judgment.
E. Prosecutorial Misconduct
Hallock accuses the prosecutor of several instances of misconduct throughout his closing argument that warrant reversal of the judgment. We do not agree.
"A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44.) "To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner." (People v. Frye (1998) 18 Cal.4th 894, 970.) Hallock fails to do so in each of the alleged instances of prosecutorial misconduct.
1. Appeal to Sympathy for the Victim
In arguing the irrelevancy of the police's failure to administer a field sobriety test to Hallock, the prosecutor said "it's not about whether the police screwed this whole thing up . . . . It's about whether [the baby] gets the justice he deserves." Hallock argues that "[a]ppeals to sympathy for the victim fall outside the range of permissible argument." (People v. Daveggio & Michaud (2018) 4 Cal.5th 790, 857.) In cases where the appeal to sympathy was " 'mild and fleeting' [citation], and before the case was submitted, the court charged that the jury 'must not be influenced by sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling,' " the appeal is not found to improperly inflame the jury because it is presumed that "the jury followed that instruction." (Ibid.) In the present case, the trial court instructed the jury with CALCRIM No. 200, "Do not let bias, sympathy, prejudice, or public opinion influence your decision." Because the prosecutor made the appeal to sympathy in passing and the jury instruction mitigated any damage, we see no prejudice.
2. Mischaracterization of Hallock's Behavior and Statements
Hallock alleges two instances where the prosecutor improperly told the jury what her testimony would have been had she testified. "[A] prosecutor commits misconduct when he purports to tell the jury why a defense witness did not testify and what the testimony of that witness would have been." (People v. Gaines (1997) 54 Cal.App.4th 821, 822.) When the witness in question is the defendant, this tactic infringes on the defendant's Fifth Amendment right against self-incrimination "if it is manifestly intended to call attention to the defendant's failure to testify, or is of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify." (Lincoln v. Sunn (9th Cir. 1987) 807 F.2d 805, 809.)
First, while describing Hallock's actions when the police officers arrived, the prosecutor underscored how bizarre appellant's behavior was at the scene: " 'I want to wait to read the search warrant before I go check on my dying baby. I don't care enough about what's going to happen to my baby that I'm going to sit here and [¶] . . . [¶] . . . read the search warrant because I know how this goes'? That's what's most important to you right now? That's a distorted thought process if I've ever seen one." Together with evidence of methamphetamine in her possession, he said, "[t]hat circumstantially corroborates the fact that . . . she was high." The prosecutor was trying to demonstrate what was likely going through Hallock's mind when the police arrived, not what she would have testified to or why she chose not to testify. It is unlikely the jury would have understood the comment as reflecting upon Hallock's exercise of her Fifth Amendment privilege. In light of that distinction, Hallock has failed to show how the prosecutor's argument was "unfair . . . deceptive or reprehensible." (People v. Morales, supra, 25 Cal.4th at p. 44.)
At another point, when discussing the identity theft charge, the prosecutor said, "On the floor in the living room is Adriana Garcia's checkbook. I mean is that something you walk by every day and go, 'Oh, there's a checkbook there. Not mine, but whatever'? In the laundry room, a check for Pamela Kahn. 'Oh, it's just there randomly, but I had no idea it's there.' " This statement was not meant to suggest what Hallock would have testified, as she was not present at the house at the time of the search. Rather, the prosecutor was using a rhetorical device to show that the only plausible explanation of the facts was that Hallock committed identity theft. Neither instance amounts to prosecutorial misconduct.
3. Inflammatory Argument
Later in the closing argument, the prosecutor said that "[t]wo types of people leave a child in a bathtub for eight minutes. People who want to kill their child" and "people who are under the influence. That's it. And the defendant was absolutely under the influence at the time." Hallock argues that this statement was intended to improperly inflame the jury by suggesting that she was as culpable as a murderer for her actions. (See People v. Redd (2010) 48 Cal.4th 691, 742 [holding that " ' "irrelevant information or inflammatory rhetoric that diverts the jury's attention from its proper role, or invites an irrational, purely subjective response" ' " is misconduct].) The statement appears to do the opposite. The prosecutor used hyperbole to demonstrate to the jury that Hallock was under the influence. His point was that Hallock clearly did not want to kill her child, so the only other reasonable explanation was that she must have been under the influence. While the prosecutor had certainly set up a false dichotomy in this instance, Hallock makes no argument and provides no case law that such tactics are misconduct or inflammatory.
4. Misstatement of the Law
In rebuttal, the prosecutor argued that the defense's character witnesses did not provide the jury reasonable doubt, saying, "So if I was on trial and I shot somebody and my mother who loves me to death came in here and said, 'He would never harm a fly,' does that create a reasonable doubt? Even if I'm caught on video shooting someone in the face? Does that create a reasonable doubt? [¶] It's her aunt and her friend. These are people who know her. They are going to say whatever they can to help her out. My mother would do the same. . . . Their testimony is completely irrelevant. . . . Her aunt said that no matter what I said it wouldn't change her opinion of her." Hallock claims that the prosecutor misstated the law by implying that character evidence could never create reasonable doubt when the law says that it can. (See People v. Bell (1875) 49 Cal. 485, 489 [" 'good character may be sufficient to create or generate a reasonable doubt of [a defendant's] guilt' "].) Specifically, the phrase, "Their testimony is completely irrelevant" could either be taken to mean that no character evidence could ever create reasonable doubt or that this specific character evidence does not create a reasonable doubt. Taken together with the jury's instruction in CALCRIM No. 350 that "Character evidence can by itself create a reasonable doubt," a reasonable jury would not have interpreted the prosecutor's statement as a comment on the law. We do not see a misstatement of the law here.
5. Mischaracterization of Defense Closing Argument
During defense counsel's closing argument, he pointed out how strange it was the police officers "didn't conduct any field sobriety tests" and that "at least two officers . . . didn't even write police reports" which are used "to help them remember what happened, when it happened, the order it happened." In rebuttal, the prosecutor described the defense counsel's argument as follows: "So he talked about, 'Oh, well, you know, these officers, there's unrecorded statements that were heard while she was sitting there waiting, you know, before she went to the hospital and, you know, the officers probably made it up or something.' . . . [¶] . . . [¶] . . . Basically implying that the officers made that up, that all of that stuff isn't true." Hallock claims that this was an improper mischaracterization of defense counsel's argument.
It is true that defense counsel never explicitly said that the police officers were lying. But the underlying implication of defense counsel's presentation was that the police officers did not remember the day of the crime accurately so their testimony could not be trusted. The prosecutor's characterization of defense counsel's argument as "[b]asically implying that the officers made that up, that all of that stuff isn't true," was then fair. We find no misconduct.
6. Forfeited Claims
Hallock alleges several instances of prosecutorial misconduct that defense counsel did not object to at trial. "To preserve a claim of prosecutorial misconduct for appeal, a defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the improper argument." (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305.) "A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile" (People v. Hill (1998) 17 Cal.4th 800, 820), or when "the misconduct is part of a pattern, when the misconduct is subtle and when multiple objections and requests for mistrial are made." (People v. Estrada (1998) 63 Cal.App.4th 1090, 1100.)
Defense counsel did not ask for an admonition of the jury in any of the alleged occurrences of prosecutorial misconduct above. However, when "the court immediately overrules an objection to alleged prosecutorial misconduct, the defendant has no opportunity to make such a request and his failure to do so obviously cannot be held against him." (People v. Green (1980) 27 Cal.3d 1, 35, fn. 19.) Defense counsel's objections were immediately overruled in each of the previous cases, so we considered the merits of Hallock's argument.
During closing arguments, defense counsel objected to all of the instances of alleged misconduct analyzed above, several of which occurred after the alleged misconduct to which defense counsel did not object. That indicates that at the time of the alleged misconduct, defense counsel did not consider objections futile yet still did not object. Hallock cannot then preserve the claims because of the futility of the objections. Moreover, we do not find any overarching pattern of subtle misconduct as we did not find any harm in the previously analyzed claims. Accordingly, Hallock forfeits objections not asserted at trial.
F. Cumulative Error
Hallock argues that the cumulative effect of the errors she asserts, even if in isolation none warrants reversal, is enough to justify a reversal of the child endangerment judgment. " 'The cumulative effect of multiple errors can violate due process even where no single error rises to the level of a constitutional violation or would independently warrant reversal.' " (Ybarra v. McDaniel (9th Cir. 2011) 656 F.3d 984, 1001.)
For the issues on which we have undertaken a prejudice analysis—the instruction on child endangerment, and the prosecutor's appeal to jury sympathy—these claimed errors were independent of one another. The cumulative effect of independently harmless errors remains harmless. "Defendant was entitled to a fair trial but not a perfect one." (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) Fundamentally, Hallock received a fair trial. We see no reason to reverse the judgment.
G. Previous Conviction of Identity Theft
The trial court sentenced Hallock to eight months in prison for identity theft with a prior conviction. When asked whether she wished to admit her prior conviction, which raised the offense from a misdemeanor to a felony, Hallock said that she had done so previously. Before admitting to a prior conviction that increases the severity of the sentence, a defendant is "entitled to be advised of his right to a fair determination of the truth of the prior conviction allegation." (People v. Cross (2015) 61 Cal.4th 164, 179.) Hallock was never afforded that advisement. The case must then be remanded, whereby the trial court should advise Hallock of her rights and allow her to admit the prior conviction allegation or hold a trial to determine the truth of the matter. (See id. at p. 180.)
III. DISPOSITION
The judgment is affirmed in part, but the case is remanded to properly determine whether Hallock had a prior conviction of identity theft.
/s/_________
STREETER, J. We concur: /s/_________
POLLAK, P.J. /s/_________
TUCHER, J.