Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 5-071875-9.
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Michael Edward Holt appeals his convictions for petty theft and possession of drug paraphernalia following a jury trial. He argues the prosecutor committed misconduct by eliciting inadmissible and prejudicial evidence when examining a witness and by improperly vouching for witnesses’ credibility during closing argument. We affirm.
Background
On December 5, 2007, Michael Holt was charged by information with felony petty theft with a prior theft conviction (Pen. Code, §§ 484, 666; count 1), resisting, obstructing or delaying a peace officer (§ 148, subd. (a)(1); count 2), and possession of a device to smoke a controlled substance (Health & Saf. Code, § 11364; count 3). It was alleged that Holt had served a prior prison term within the meaning of section 667.5, subdivision (b). As to count 1, eight prior theft convictions were alleged.
All statutory references are to the Penal Code unless otherwise indicated.
The case went to trial in January 2008. Christopher Milan testified that he was working as an undercover loss prevention officer at a Safeway grocery store on September 20, 2007, when he saw Holt put two bottles of liquor into his backpack inside the store. Milan went outside the store to wait for Holt to exit. From his position outside, Milan watched Holt walk quickly from the back of the store, pass the cash registers without paying, and exit the store. Milan then approached Holt with his loss prevention partner, identified himself as “store security,” presented his badge, and asked to see what was in the backpack. Holt took off the backpack and handed it to Milan, then immediately ran away, saying, “[Y]ou can have it back.” Milan and his partner were able to grab onto Holt and stop him by the time he got to the next parking spot.
Michael Russell, a Contra Costa County Animal Service Officer, stopped at Safeway on his way home from work on September 20, 2007. As he was driving out of the parking lot, Russell saw Milan and another person hanging onto Holt, with Holt struggling to get away from them. Russell exited his vehicle and yelled, “what[’s] going on?” Milan said he and his partner were “undercover” and that Holt had just stolen or shoplifted from Safeway. Russell, who was in uniform and carrying a firearm, ordered Holt to lie on the ground. Holt stopped and stared at Russell, who again ordered him to get on the ground. Holt then “kind of shrugged his shoulders and complied and immediately laid down.” About three to five minutes later, Concord police officers arrived and took Holt into custody. Holt remained on the ground until the officers arrived.
Concord Police Officer Eduardo Montero was dispatched to the Safeway at about 4:30 p.m. on September 20, 2007. When he arrived, Russell had Holt “proned down” on the parking lot with his hands outstretched in a “Y” shape, and Russell had his gun drawn. Montero immediately began to handcuff Holt. He put his knee on Holt’s back, brought Holt’s left arm down behind his back, and ordered Holt to give him his right hand. Holt, who was very belligerent, cursed and refused to give Montero his right hand. Montero again ordered Holt to give him his right hand and Holt continued cursing and yelling. Montero then grabbed Holt’s right hand, brought it behind Holt’s back, and handcuffed him. He ordered Holt to stand up, but Holt yelled and complained about his shoulder hurting and did not cooperate. “At that point I just basically stood him up. [¶]... [¶]... I... basically forced him to stand up and picked him up myself.”
Montero searched Holt’s pants and pockets and found a glass pipe with Brillo stuffed in one end, which Montero identified as a crack pipe, and three bottles of shampoo that appeared to be full and new. Montero searched the backpack and found two bottles of whiskey that were full and sealed, and a black sunglass case that contained a hypodermic needle, synthetic tubing, cotton balls, and two metal caps that looked burnt underneath. Montero identified the contents of the sunglass case as drug paraphernalia. The whiskey and shampoo was turned over to Milan, who identified them as Safeway items.
After the prosecution rested, the parties then stipulated that if Russell were recalled to the witness stand he would testify that he never drew his gun. The defense then rested.
Defense counsel argued in closing that Holt was guilty of attempted petty theft and not guilty of petty theft. He argued that to convict Holt of petty theft, “you have to be convinced that at the time of the taking, Mr. Holt had the mental state and the requisite intent to get out of the Safeway with those items. [¶] But if he is in the process of deliberation of thinking about this, the crime is not completed, and you have to vote not guilty.” He urged the jury to find Milan not credible based on his allegedly inconsistent testimony and the influence of the prosecutor’s leading questions, and to conclude that Holt was apprehended not outside the store but inside, before Holt had mentally resolved to steal the items. On the resisting arrest charge, defense counsel questioned Montero’s credibility and argued that Holt was not resisting or delaying Officer Montero, but was reacting to pain. On the drug paraphernalia charge, defense counsel submitted.
In his final summation, the prosecutor argued the petty theft was “a completed crime. The moment he picks up the bottles and moves even an inch with it and intends to steal those bottles, that’s a completed crime. [¶] If you want to believe that at no point in time did he ever intend to steal, okay, maybe it’s an attempt, but you have to think about it to yourself[,] is that really reasonable? Do you think when he picked up the bottles he didn’t intend to steal it? Do you think when he put the bottles in the backpack, he didn’t intent to steal it? Do you think for that entire time he was in the store he never once intended to steel [sic] those bottles?”
The jury found Holt guilty of petty theft and possession of drug paraphernalia and not guilty of resisting, delaying or obstructing a police officer. Holt waived his right to a jury trial on the prior conviction and prison term allegations. The court found the prior conviction allegations as to the petty theft charge true, but ruled that the People did not establish the prior prison term allegation because they did not present evidence that Holt was out of prison for less than five years before he was convicted of another felony. (§ 667.5, subd. (b).) The trial court sentenced Holt to a two-year mitigated prison term for the petty theft conviction and 128 days in county jail for possession of drug paraphernalia.
Discussion
Holt argues the prosecutor committed misconduct by eliciting testimony that Holt claimed to have jail identification and by vouching for prosecution witnesses during closing arguments.
“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. Furthermore, and particularly pertinent here, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Morales (2001) 25 Cal.4th 34, 44, italics added.)
“Generally, a claim of prosecutorial misconduct is preserved for appeal only if the defendant objects in the trial court and requests an admonition, or if an admonition would not have cured the prejudice caused by the prosecutor’s misconduct.” (People v. Ledesma (2006) 39 Cal.4th 641, 726.) Under California law, “the test of prejudice is whether it is ‘reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the comment attacked by the defendant. [Citations.]’ [Citation.] However, if federal constitutional error is involved, then the burden shifts to the state ‘to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ (Chapman v. California (1967) 386 U.S. 18, 24....)” (People v. Bolton (1979) 23 Cal.3d 208, 214.)
I. Eliciting Testimony about Holt’s Jail Identification
Holt claims the prosecutor erred by eliciting inadmissible and prejudicial evidence from Officer Montero. (See People v. Bell (1989) 49 Cal.3d 502, 532 [“ ‘The deliberate asking of questions calling for inadmissible and prejudicial answers is misconduct.’ [Citation.]”].) We conclude any error was cured by the court’s admonition to the jury.
A. Factual Background
After Montero testified that he recovered two bottles of whiskey and the sunglass case with drug paraphernalia from Holt’s backpack, the prosecutor asked:
“Q. Inside the backpack did you locate any indicia tying the Defendant to the backpack?
“A. We found paperwork in his name inside the backpack.
“Q. Do you recall what type of paperwork?
“A. One was some type of medical release form, other than that, I don’t recall. [¶]... [¶]
“Q. What else did you find inside the backpack?
“A. Other than the sunglass case, the paperwork and bottles of whiskey, there were just clothes, different type of clothing.
“Q. Were you ultimately able to determine the Defendant’s identity?
“A. Yes.
“Q. Were you able to determine the Defendant’s date of birth?
“A. Yes, we were.
“Q. What was that?
“A. 9-27-72.
“Q. Did you recall finding any identification other than this paperwork inside the backpack?
“A. No, he told us that he had some jail identification, I believe from San Francisco, but I never located it.
“Q. Okay. All right. What else?”
At this point, defense counsel asked to approach the bench and the court held a conference in chambers. Defense counsel argued the prosecutor “was apparently informed that there was something more than [a] sunglass case and bottles of whiskey [in the backpack]. [¶]... [¶] And that information was elicited just now. [¶]... [¶] Now the jury has heard out of the blue that Mr. Holt had indicia, papers from the jail,... [that]—and I’m going to give here [the prosecutor] the benefit of the doubt—comes out of no where.” The prosecutor said he “had no idea what indicia was in there.” Defense counsel argued the error was unduly prejudicial and “you cannot unring the bell.” He moved for a mistrial based on this and other errors. The prosecutor argued “jail identification” could be interpreted in many ways, including that Holt worked at the jail. The court agreed: “I don’t think that the inference is that he’s been to jail in San Francisco. It’s that there’s a jail document, that’s all I heard. And so I’m not going to grant a mistrial but I will give a cautionary curative instruction....”
Back in front of the jury, the court gave the following instruction: “The jury is to disregard any references to a purported jail document. This is not evidence and the jury is not to consider this in the jury’s deliberations.”
B. Analysis
Holt argues on appeal that the prosecutor’s persistent questions about whether Montero found indicia of ownership in the backpack suggested that he deliberately elicited the testimony about the jail identification. However, he expressly declined to argue that the error was deliberate during the in camera conference in the trial court. In any event, a showing of bad faith or intentionality is generally not necessary to establish prosecutorial misconduct, which is more aptly described as prosecutorial error. (People v. Hill (1998) 17 Cal.4th 800, 822-823 & fn. 1.)
Assuming the question was error, we conclude the court’s curative admonition to the jury was sufficient to dispel any prejudice. The court’s characterization of the document as a “purported jail document” indicated to the jury that Montero’s statement might have been inaccurate. (Italics added.) The court further instructed that the statement was “not evidence and the jury [wa]s not to consider this in the jury’s deliberations.” Neither the document nor the possibility that Holt had a prior criminal record was again mentioned to the jury. And, as we explain below, the evidence of Holt’s guilt on the charges of which he was convicted was overwhelming.
II. Improper Argument
Holt next argues that the prosecutor improperly vouched for the credibility of the prosecution witnesses during closing argument. We conclude there were no vouching errors.
“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.] However, so long as a prosecutor’s assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the ‘facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,’ [the prosecutor’s] comments cannot be characterized as improper vouching.” (People v. Frye (1998) 18 Cal.4th 894, 971, overruled on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.)
A. Factual Background
In his initial closing argument, the prosecutor discussed how the jurors should assess the credibility of witnesses. “You’ve become the judge of witnesses. Do you believe them or not[?] Are they telling you the truth or not[?] And you’ll get a list of instructions about what you can take into account.... [¶]... [H]ow well could the witness see or hear; how well was the witness able to remember? [¶] What was the witness[’s] behavior while testifying? [¶] Did the witness understand the questions and answer them directly? [¶] Was the witness’s testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or personal interest in how the case was decided? [¶] What was the witness[’s] attitude about the case or about testifying? [¶] Did the witness make a statement in the past that’s consistent or inconsistent with his or her testimony?”
He then argued that “all the witnesses that the People presented in our case in chief were completely credible. [¶] Loss prevention officer Chris Milan came on in here, only been on the job about a month, but it’s not that hard to assume he was doing his job and testified truthfully to everything that he saw. [¶] You know, he said, yeah, you know, the defendant, his back was to me but I could see what he was doing because he was sort of at an angle. I couldn’t actually see his hands, but I could see him take the bottles out and put them in the bag. [¶] He was being credible. He wasn’t embellishing or lying.
“Officer Russell, completely credible witness. Doing his job. Got off work, going to Safeway, getting a gallon of milk, what does he see when he comes out? The defendant struggling with the loss prevention officers.
“And finally, Officer Montero, credible witness. There may have been one thing that he got wrong but everything else was pretty much in line. He said I saw the defendant, he was out there prone. I searched him, I found this pipe, I found this syringe and he didn’t listen to my instructions. You really have to believe—would that officer come in her and lie to you? Would Officer Russell come in here and lie to you?
“[Defense counsel]: I’ll object. That’s improper.
“THE COURT: Sustained. The jury is to disregard the argument that was just made by counsel.
“[The prosecutor]: Well, you heard their testimony. Do you believe them or not? That’s basically—that’s why we have you guys on the jury. I would propose that they were completely credible witnesses.”
B. Analysis
We do not agree with the trial court that the prosecutor’s rhetorical questions—“[W]ould that officer [Montero] come in here and lie to you? Would Officer Russell come in here and lie to you?”—were improper. The prosecutor had previously clearly explained to the jury that it was their duty to judge the credibility of the witnesses, and cited instructions that directed them to factors that were relevant to credibility determinations. In arguing that the jury should find each of the prosecution witnesses credible, the prosecutor simply applied those factors to each witness. The rhetorical questions challenged by Holt essentially asked the jury to find, based on the evidence they had heard, that Officer Montero and Officer Russell had no apparent bias that would lead them to provide false or distorted testimony in this case. (See People v. Frye, supra, 18 Cal.4th at p. 972 [“the prosecutor’s use of rhetorical questions, for example, why ‘would [the witness] be making this stuff up?,’ was not impermissible”].) As the prosecutor had previously argued, Russell was simply “[d]oing his job. Got off work, going to Safeway, getting a gallon of milk,... [and he sees] defendant struggling with the loss prevention officers.” That is, he was a complete stranger to the participants and to the events leading up to the struggle and thus had no apparent motive to lie or distort his testimony. Similarly, the prosecutor earlier argued that, while Officer Montero might have been mistaken on one fact (whether Russell drew his gun), the rest of his testimony “was pretty much in line” with the rest of the evidence presented at trial. That is, the jury should find Officer Montero credible because his testimony was largely consistent with or corroborated by other evidence. Both before and after defense counsel’s objection, the prosecutor urged the jury to make its own credibility finding based on the evidence. (See People v. Green (1980) 27 Cal.3d 1, 35-36, fn. omitted [“Throughout his argument, the district attorney repeatedly emphasized to the jurors that any opinion he expressed to them... was based on the evidence and legitimate inferences therefrom, and he reminded them again and again that they were the sole judges of the facts....”], overruled on other grounds by People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3 and by People v. Martinez (1999) 20 Cal.4th 225, 233-237.)
Even if we were to conclude the prosecutor’s rhetorical questions were improper vouching, Holt has not explained how he was prejudiced by this argument. Russell and Montero’s testimony was primarily directed at the resisting charge, of which Holt was acquitted, and the drug paraphernalia possession charge, which Holt did not contest.
Holt attempts to bootstrap other alleged errors onto the one claim he preserved for review. He cites two incidents when the prosecutor allegedly vouched for Milan’s credibility. During the prosecutor’s redirect examination of Milan, when he was trying to rehabilitate Milan on a particular point, the prosecutor asked, “Would you lie to this jury and tell them that the Defendant said something if he didn’t say it?” The court sustained a defense objection to this question as “improper.” Holt attempts to link this early alleged error to the prosecutor’s statement during his final closing argument that “Chris Milan is not a liar.” The prosecutor continued: “[Defense counsel] is free to attack the character of witnesses if he wants to, that’s his prerogative. But who is Chris Milan? He’s a law [sic] prevention officer. He’s relatively young, never testified, probably a little nervous. He’s not going to lie to you guys. He’s telling you the truth, telling you what he saw. And what about the attack by [defense counsel] on whether Chris Milan was in or outside the store, it’s ridiculous.... [¶] And there was this mention of what’s going on during these five minutes when Chris Milan has lost visual contact with the defendant. Do you really need to know what was going on during those five minutes[?] Do you really think during those five minutes the defendant was actually shopping like a regular shopper?... [¶]... [¶] You know what he’s doing out there[,] getting the shampoo bottles and concealing them in his pants. And by the way,... [w]hat other innocent interpretation is there for having just not one or two but three shampoo bottles in your pants[?]” Holt maintains this argument was vouching error that exacerbated the error that occurred during redirect examination.
Neither incident was vouching error. The question to Milan during redirect examination did not imply to the jury that the prosecutor personally believed Milan was truthful based on evidence that was not presented in court. The closing argument urged the jury to find Milan credible based on the trial evidence, not based on the prosecutor’s personal belief in his honesty. The prosecutor argued that Milan had no bias that would cause him to lie or distort his testimony, that his inconsistencies were easily explained by his youth and inexperience testifying in court, and that the inferences defense counsel drew from the alleged inconsistencies or gaps in Milan’s testimony were not credible. In any event, the court sustained Holt’s objection to the question asked during redirect examination and Holt did not request a curative admonition and has not shown that the sustaining of the objection alone did not or a curative admonition would not have cured any harm caused by the error. As to the closing argument, the claim is forfeited because Holt did not raise a timely objection.
Holt argues the prejudicial impact of the alleged vouching errors was aggravated by the prosecutor’s denigration of defense counsel during his final closing argument. The court sustained defense objections to the prosecutor’s statements that “defense attorneys like to make beyond a reasonable doubt seem like the most difficult standard in the world to obtain,” and that “this is not an attempt, that’s a ploy by [defense counsel] for you to feel sympathy for the defendant.” Because we have concluded there were no vouching errors, these alleged additional errors could not have exacerbated the effect of vouching. Even if there were vouching errors, these alleged errors are not directly related to the credibility of witnesses in a way that would specifically exacerbate the effect of vouching. Moreover, We would also point out that Holt did not request an admonishment or curative instruction for these alleged errors and he does not argue that the court’s sustaining of his objections alone was insufficient to cure any prejudice.
C. Prejudice
Assuming for purposes of argument that the prosecutor committed errors that were not forfeited by Holt’s failure to object or were not cured by the court’s admonitions, any such errors would be harmless beyond a reasonable doubt.
The evidence that Holt committed petty theft was overwhelming. Milan testified that he saw Holt place two liquor bottles in his backpack and walk out of the store without paying for them. When Milan asked to see Holt’s backpack, Holt handed it to him, fled, and said, “[Y]ou can have it back.” Holt even attempted to flee after Milan and his partner apprehended him. Montero discovered not only the two liquor bottles in Holt’s backpack, but also three bottles of shampoo in Holt’s pants and Milan specifically identified the liquor bottles as the ones he saw Holt put in his backpack. All of the items were sold by Safeway. No evidence was presented at trial to contradict this testimony or to show bias on the part of the prosecution witnesses.
The defense “attempted petty theft” theory was far fetched. First, Milan’s testimony that he could see all the way to the back of the store from his position right outside the front door was not inherently improbable, given the long uniform straight aisles that make up a grocery store. Second, even if the jury doubted the testimony, it would have been a great leap in reasoning to then conclude that Milan must have been inside the store when he confronted Holt, when no other trial evidence suggested that fact. Third, even if Milan had been inside the store, the defense theory would be plausible only if Holt had been apprehended before he walked past the cash registers and, again, there was no trial evidence that suggested such a scenario. Fourth, the theory that Holt had not decided whether to take the items without paying is not credible given the fact that he had hidden three full bottles of shampoo in his pants.
Disposition
The judgment is affirmed.
We concur .SIMONS, ACTING P.J., NEEDHAM, J.