Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside, No. SWF022721 James S. Hawkins, Judge.
AARON, J.
I.
INTRODUCTION
Defendant Antoinette Heggins appeals from a judgment of conviction after jury trial. A jury convicted Heggins of kidnapping to commit robbery based on her role in the robbery of a Loomis armored truck that Heggins was driving.
On appeal, Heggins contends that the prosecutor committed prejudicial misconduct by improperly vouching for the main prosecution witness — Heggins's former roommate and girlfriend, who participated in the robbery and pled guilty to simple kidnapping and two counts of robbery. We conclude that although the prosecutor's question to the witness did constitute improper vouching, any potential prejudice was dispelled by the trial court immediately sustaining the objection and later instructing the jury that it was to ignore any questions to which an objection had been sustained, as well as by an instruction that questions posed by the attorneys were not evidence. Further, we conclude that there is no reasonable probability that Heggins would have obtained a more favorable result absent the prosecutor's improper question. We therefore affirm the judgment of the trial court.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
During the summer of 2007, Heggins was employed as an armored truck driver by Loomis. Heggins convinced her roommate, Delia Davies, to participate in a robbery of the truck. Davies, in turn, recruited Michael Brodie, who recruited a second man, Leon Wagner, to help them commit the robbery. The group met three or four times to plan the crime.
Heggins chose the location of the robbery — a Long's Drugstore in Hemet — and the day of the week — a Monday, because there were more pickups of money on that day. Before the women recruited Brodie and Wagner, Heggins told Davies that they should use guns during the robbery to make it look more real. They did not have any intention of killing or harming Heggins's coworker in the truck.
Heggins and Davies rented a blue Chrysler Sebring to use during the robbery. Heggins told Davies at least twice to take the license plates off the car, but Davies did not take off the plates because she decided that it was not important to do so. Heggins was the primary driver on the rental contract. Davies was on the contract as a driver, as well.
On Monday, August 13, 2007, Davies drove Brodie and Wagner in the rented Chrysler to the Long's Drugstore on Florida Street in Hemet. Heggins had given Davies two Loomis shirts earlier that day to give to Brodie and Wagner. The two men got out of the car in the parking lot. Davies drove the car to the front of the store and parked it there with the emergency flashers on. Heggins texted to Davies the location of the truck so that Davies would have an idea of when the truck would arrive at the Long's Drugstore.
John West, who had been working with Heggins for about four months by this time, was riding in the back of the Loomis truck that day. West was armed with a 9-millimeter semiautomatic firearm, which was his personal property.
As the Loomis truck approached the Long's Drugstore, West noticed a blue car parked in front of the store with its emergency lights on. The car was parked directly in front of the door to the store, which meant that West would not have a clear approach to the door. West asked Heggins if they should make the car move or go around it. According to West, it is the driver's responsibility to ensure that the front, back, and left side of the armored truck are clear before the armed guard exits the back of the truck to make any deliveries or pick-ups. Heggins told West, "No, the coast is clear, it's good to go."
West looked out the window of the side door of the back of the truck and did not see anyone. He opened the door with his right hand while holding a bag of money in his left hand. As West stepped down off the truck, a man pointed a gun at West's left cheek, pushed West, and told him to get back into the truck. West fell backward, scraping his right elbow on the floor of the truck and hitting his head on the floor.
The man, who was wearing a Loomis shirt, a baseball cap and sunglasses, said to West, "Get to the floor and don't fucking move. I'll kill you." West responded, "Please don't shoot me, take what you want." The man replied, "Shut the fuck up. I'll kill you."
West felt a second gun against his cheek and saw another man, who was also wearing a Loomis shirt, baseball cap and sunglasses. That man took West's gun. The first man told Heggins, "Drive, bitch." Heggins drove the truck about a quarter of a mile. The men told Heggins to stop the truck, and West, who had been on the floor with his eyes closed the entire time, felt the truck come to a halt. The men ordered West to stay still and not to move, and threatened to kill him if he did not comply. One of the men had a canister of pepper spray that he was shaking, as if he was getting ready to spray it in West's face.
Neither of the men told Heggins where to go, and she never asked for any further directions. Heggins also did not make a call to the home office for assistance.
West recognized the can as standard issue law enforcement pepper spray.
West heard the men leave the truck, and heard the door shut. The men had taken nearly all the money from the truck. West saw that the truck was in an empty cul-de-sac. He watched the two men get into the same blue car that had been parked in front of the Long's Drugstore.
West asked Heggins if she was alright, and she said that she was. Heggins did not show any outward signs of being upset. West asked Heggins to get the license plate number from the blue car, but she told him that she could not see the license plate from her angle. Heggins's view was the same view as West's, and he was able to see the license plate.
West's supervisor called at that point in time, and West told him what had happened. West called 911 and the police came to investigate.
Later that day, Heggins arrived at home to the apartment that she shared with Davies about three hours later than usual. Davies told Heggins that her share of the money was in the bedroom. Heggins asked Davies why she had not taken the license plates off the car as she was supposed to do, and Davies responded that she thought she did not need to take off the plates.
Four days later, police officers searched the apartment that Davies and Heggins shared. The officers spoke with Davies and told her that Heggins had already spoken with them. Davies assumed that she and Heggins "had been caught, " and she talked with a police detective that night about the roles that she and Heggins had played in the robbery. At trial, Davies admitted that she had not been fully truthful about her role in the robbery when she spoke with the detective that night.
The detective asked Davies whether she would agree to talk with Heggins in the back of a police truck, where Heggins was being held. Davies did as she was asked, and the conversation between Davies and Heggins was recorded. The recording of their conversation was played for the jury.
On the recording, Heggins can be heard telling Davies that she had told the police only that Davies "kn[e]w of them [i.e., the men who committed the robbery], " and that Davies "didn't have nothing to do with it." She can then be heard asking Davies, "We said pretty much the same thing, right?" Davies told Heggins that she had told police that she did not know the men. Heggins then went through what she had told the police, including how the men had been the ones who came up with the scheme, and that she and Davies did not believe the men when they said that they were going to commit the robbery. Heggins then said to Davies, "I told you to say that crap. I told, didn't I tell you to say that? Damnit, Delia. It[']s okay. It[']s okay. We're not going down for these dudes, you hear me? What did you tell them? You was coming back from where? Cabazon, that's what you were supposed to tell them."
Heggins continued to talk to Davies, telling her that if they gave up the names of the men, they would not have to go to prison. Heggins acknowledged to Davies that she had told the police that she and Davies had rented a car, but said that she told the officers that the only reason Davies would have assisted the men was if "they had to force her hand" by threatening Davies that they would "rat it out [i.e., the fact that she is gay] to her parents and that would just mess her world up." Later, Heggins said to Davies, "I was hoping that you knew if I didn't call you, was to get rid of that shit. I was trying to call you. I was trying to call you.... I was trying. I kept asking can I get a phone call, can I get a phone call." Davies assumed that Heggins was referring to the stolen money when she said that she had hoped that Davies "g[o]t rid of that shit."
A Loomis representative estimated that the robbers took approximately $340,000 in cash and $14,000 in checks during the robbery. Loomis recovered about $141,000, but suffered a loss of over $200,000.
Heggins testified in her own defense. According to Heggins, Davies planned and carried out the robbery without Heggins's knowledge. Heggins admitted that she had helped Davies obtain a rental car, and explained that she had done so because Davies's truck was not working properly and Davies did not have a credit card. However, Heggins claimed that she did not know that Davies intended to use the rental car to stage a robbery.
B. Procedural background
The District Attorney of Riverside County filed an amended information charging Heggins, Davies, and the two men with kidnapping to commit robbery (Pen. Code, § 209, subd, (b)(1); count 1), and two counts of robbery (§ 211; counts 2 and 3). The information further alleged as to all counts that a principal was armed with a firearm (§ 12022, subd. (a)(1)), and, as to count 2, that the defendants took property with a value in excess of $150,000 (§ 12022.6, subd. (a)(2)).
Further statutory references are to the Penal Code unless otherwise indicated.
Davies pled guilty to simple kidnapping and two counts of robbery, in exchange for a sentence of 12 years in state prison and two strikes.
A jury found Heggins guilty on count 1, but was unable to reach a verdict on counts 2 or 3.
The trial court sentenced Heggins to a term of life in prison with the possibility of parole on count 1, plus an additional determinate term of three years, consisting of one year for the armed principal enhancement and two years for the value in excess of $150,000 enhancement. The court later dismissed counts 2 and 3.
Heggins filed a timely notice of appeal on November 5, 2009.
III.
DISCUSSION
Heggins contends that the prosecutor committed prejudicial misconduct in improperly vouching for the veracity of Davies, who had pled guilty and agreed to testify for the prosecution.
Toward the end of the prosecutor's direct examination of Davies, he questioned her about the initial statements that she had made to police. When Davies was first questioned by police, she had not told the whole truth, and instead lied in order to minimize her culpability. The prosecutor asked, "And when you first spoke to the police that night, did you immediately tell them the truth as you told the jurors here today?" Counsel for one of Heggins's codefendants objected that the prosecutor was vouching for the witness, and Heggins's attorney objected that the question was argumentative. The trial court sustained the objections.
At that point, counsel for one of the other codefendants made a motion to strike, although it is not clear from the record what, exactly, counsel wanted stricken. The court then took a recess. Counsel for that same codefendant requested that the trial court declare a mistrial on the ground that the prosecutor had committed misconduct by improperly vouching for a witness. The court agreed that the prosecutor's question constituted improper vouching and asked the attorneys to research whether the improper vouching required a mistrial.
The court had already sustained the objections to the prosecutor's question, and Davies had not answered the question.
The following morning, counsel for one of Heggins's codefendants indicated that her research established that improper vouching for a witness constituted misconduct, but that even where such misconduct occurred, "[n]one of those cases got reversed on appeal saying a mistrial should have been granted or anything like that." After acknowledging that she had not found any case law that stated that improper vouching "rose to the level of a mistrial, " she noted that a limiting instruction is often appropriate, but added, "[W]e kind of already have that in the one instruction that says... [¶]... [¶]... like attorneys questions are not evidence."
The trial court indicated its view that "to go back and admonish the jury or highlight it would be [to] create more problems than it would [do] good." The attorneys for the defendants agreed with the court's assessment. Ultimately the trial court instructed the jury as follows:
"Nothing that the attorneys say... [is] actually evidence.... [T]heir questions themselves are not actually evidence, either. Only the witness[es]' answer[s are] the evidence. [¶] The attorneys' questions are significant because they help [to] understand the witness[es]' answer[s]. But don't assume something's true just because one of the attorneys may have asked a question that suggests that it's true. [¶]... If I sustained an objection, then you should ignore the question."
It is well established that a prosecutor commits misconduct by improperly vouching for the credibility of a witness. "A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness's truthfulness at trial. [Citation.]" (People v. Frye (1998) 18 Cal.4th 894, 971, overruled on other grounds in People v. Doolin (2009) 46 Cal.4th 390, 421, fn. 22.)
Where a claim of prosecutorial misconduct focuses "on comments made by the prosecutor before the jury, a court must determine at the threshold how the remarks would, or could, have been understood by a reasonable juror." (People v. Benson (1990) 52 Cal.3d 754, 793.) Claimed prosecutorial misconduct requires reversal only if it is "reasonably probable that the jury would have reached a result more favorable to [the] defendant absent the prosecutor's misconduct." (People v. Kipp (2001) 26 Cal.4th 1100, 1130.)
We agree with the trial court that the prosecutor's statement constituted improper vouching for the credibility of Davies. It appears that the prosecutor was attempting to ask Davies whether she was being truthful in her testimony at trial, and whether this was in contrast to what she had told a detective shortly after the crime. However, the prosecutor's inartful phrasing had the unfortunate consequence of implying that the prosecutor believed Davies was testifying truthfully at trial, based on information the prosecutor had that was not before the jury, and thus, that the prosecutor was vouching for Davies's credibility. The prosecutor's question was therefore improper.
Although the prosecutor's question was improper, the trial court immediately sustained defense counsels' objections to the prosecutor's question, and instructed the jury that it was to ignore any questions to which an objection had been sustained. The court also instructed the jury that the attorneys' questions were not evidence. This was sufficient to cure any potential harm that may have resulted from the prosecutor's question. (See People v. Dennis (1998) 17 Cal.4th 468, 521 [prosecutor's misstatements, although bearing a potential for prejudice, were not so extreme or so divorced from the record that they could not have been cured by prompt objections and admonitions].)
Even if we were to assume that any potential prejudice arising from the prosecutor's inartful question was not fully dispelled by the trial court's sustaining the objections to the question, we would nevertheless conclude that it is not reasonably probable that the jury would have reached a result more favorable to Heggins absent the prosecutor's question. There was a great deal of evidence demonstrating Heggins's guilt, including her own inculpatory statements made to Davies while the two were talking in the back of a police truck during the search of their apartment. Considering the weight of the evidence of guilt, the prosecutor's ill-advised question was so minimal in the context of the entire trial that it simply could have had no real effect on the outcome of this trial.
IV.
DISPOSITION
The judgment of the trial court is affirmed. Our review of the record revealed that the abstract of judgment incorrectly identifies the sentence on count 1 as life without the possibility of parole. In addition, the abstract of judgment reflects that the trial court ordered Heggins to participate in a substance abuse program pursuant to section 1203.096, and to register with local law enforcement upon release from custody pursuant to section 290 and Health & Safety Code section 11590. However, these orders are not found in the transcript of the court's oral pronouncement of judgment.
We therefore direct the trial court to file an amended abstract of judgment that accurately reflects the court's oral pronouncement of judgment as set forth in the transcript (including clarification of the fees assessed by the court). The trial court shall also forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
WE CONCUR: NARES, Acting P. J., McDONALD, J.