Opinion
A131531
12-21-2012
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH KELLY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County
Super. Ct. No. C164692)
Joseph Kelly (appellant) was convicted, following a jury trial, of first degree murder. On appeal, he contends (1) the trial court erred when it permitted the prosecution to present irrelevant evidence that appellant sold drugs; (2) the prosecutor twice committed misconduct during closing argument when she misstated the law and improperly stated facts not in evidence; and (3) the trial court erred when it refused to instruct the jury on the lesser included offense of voluntary manslaughter based on sudden quarrel or heat of passion.
In a petition for writ of habeas corpus (habeas petition), filed in propria persona, appellant contends defense counsel was incompetent for failing to (1) move to discharge two jurors for misconduct, and (2) ask the court to permit him to continue his closing argument after lunch, rather than ending it prematurely.
We shall affirm the judgment and, in a separate order, shall deny the habeas petition.
PROCEDURAL BACKGROUND
Appellant was charged by information with the murder of Lawrence Patterson (Pen. Code, § 187). The information also alleged that appellant personally and intentionally discharged a firearm, causing great bodily injury and death, within the meaning of sections 12022.7, subdivision (a) and 12022.53, subdivision (d); personally and intentionally discharged a firearm with the meaning of section 12022.53, subdivision (c); and personally used a firearm within the meaning of sections 12022.5, subdivision (a), and 12022.53, subdivisions (b) and (g). The information further alleged that appellant had served two prior prison terms (§ 667.5(b)) and had four prior felony convictions.
Appellant apparently used the name, "Maurice Rumsey," as well as "Joseph Kelly."
All further statutory references are to the Penal Code unless otherwise indicated.
A jury found appellant guilty of first degree murder and found the firearm enhancement allegations true. Appellant admitted one prior felony conviction and one prior prison term and, in a court trial, the trial court found those allegations true and struck the remaining prior conviction and prison term allegations.
On March 18, 2011, the court sentenced appellant to a total 51 years to life in prison, which included a 25-years-to-life term for the first degree murder conviction, a 25-years-to-life term for the firearm enhancement under section 12022.53, subdivision (d), and a one-year term for the prior prison term enhancement (§ 667.5).
Also on March 18, 2011, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Appellant was convicted of first degree murder in the late-night shooting of Lawrence Patterson outside the Laurel Lounge, a bar at the corner of 38th Street and MacArthur Boulevard in Oakland.
Prosecution Case
Raleigh Dangerfield, who had known the victim, Lawrence Patterson, since junior high school, drove with Patterson to the Laurel Lounge bar in Oakland on the night of October 9, 2009. Near closing time, Dangerfield went outside the bar. He was talking with Patterson, who had also come outside, when he heard a gunshot. Dangerfield started running and, when he turned around, he saw Patterson on the ground. He "vaguely" saw the shooter, but testified that he could not remember anything about him or anything else he saw that night related to the killing. He claimed that he did not remember if he recognized the shooter when he saw a video of the bar. Nor did he remember anything he told police about that night or who he identified in a photo lineup as the shooter.
Dangerfield admitted that he did not want to testify at trial because he did not want to be labeled a snitch and he feared for his life. He was afraid because he had heard on the streets that there was a price out on his head. Dangerfield also admitted that he had been convicted of possession of crack cocaine for sale in 1995 and 2002. Portions of a videotaped police interview of Dangerfield were played at trial, as a prior inconsistent statement.
William Powell (William), who had known Lawrence Patterson for about four years, testified that he and his brother, Nate Powell, went to the Laurel Lounge on the night Patterson was shot. William did not see who shot Patterson or remember much about the shooting. He gave a truthful statement to police within a week of the shooting, but did not remember what he had said. William admitted that he did not feel good about testifying and that he was "a little bit" concerned about being labeled a snitch. But he denied previously telling the prosecutor and a police inspector that he did not want to testify because he knew there was a price out on his head. The prosecutor played the videotaped interview statement William gave to police, but it did not refresh his recollection about the shooting of Patterson. He also did not recall if his identification of someone in a photo lineup was of someone who looked like the shooter. William acknowledged that he had a 2002 conviction for possession of narcotics for sale.
For clarity, William Powell will be referred to as "William," and his brother Nathaniel Powell will be referred to as "Nathaniel." In addition, defense witness Joe Powell will be referred to as "Joe."
Nathaniel Powell (Nathaniel), who had known Lawrence Patterson for about two years, testified that he arrived at the Laurel Lounge about 10:30 or 11:00 p.m. on the night Patterson was shot. He did not see who shot Patterson and did not remember much about that night. Nathaniel testified that he did not want to be in court, but denied previously telling the prosecutor that he had heard on the streets that there was a price out on his head, that he had heard someone in the courtroom threaten Raleigh Dangerfield, or that he wanted help relocating his mother. He did remember talking to police after the shooting and, although he did not remember what he said, he testified that he gave a truthful and accurate statement to police at that time. A videotape of Nathaniel's interview with police was played for the jury.
Darren Simmons, a friend of Patterson's, testified that he went to the Laurel Lounge on the night of the shooting about 11:00 p.m. While there, he saw Patterson and several other people he knew. When Patterson was shot, Simmons was outside the bar, near the front door, talking to Nate (Nathaniel Powell). Patterson was standing on the corner talking with Dangerfield and William Powell. Simmons heard a gunshot and he and Nate pushed each other inside the bar. When he heard someone say, "A guy got hit," Simmons went back outside and walked around the corner, where he saw Patterson on the ground. He also saw a man near Patterson looking down at him and swinging his arm as he stepped back. The man looked as if he could have had a gun in his hand as he swung his arm. The man ran to a silver Dodge Caliber car parked near the corner of 38th Street and MacArthur, and left the scene. Simmons had seen this man in the bar a couple of times over the previous six months. Also, earlier on the night of the shooting, the man had passed him in the bar.
On October 14, 2009, Simmons spoke with Oakland Police Department detectives and gave them a truthful and accurate statement about what he had seen on October 9. After reviewing that statement while on the witness stand, he gave more details about the night of the shooting, including a description of the shooter.
After the man got into the car, Simmons picked up Patterson, who was lying on the ground, and held him in his arms and talked to him. Patterson's face and head were bloody, but he was still breathing. He died in Simmons's arms just before police arrived.
On October 14, 2009, police showed Simmons a videotape of people going in and out of the bar and also showed him a photo lineup. He circled the photograph "of the person I was told that did it, that shot my friend." When the prosecutor asked how he felt about testifying at trial, Simmons responded, "I don't want to be here." He explained that he had "never been in a position like this before" and it made him uncomfortable. He also acknowledged that he had two felony convictions, from 1999 and 2001, for possession of marijuana for sale. He also had been arrested three weeks earlier for being a felon in possession of a firearm. He got the gun for protection because of what he was going through "in the case and everything." He had not been threatened, but he believed that people he knew might think he had done something wrong because he talked to the police about what happened. He therefore "just want[ed] to be ready."
During her direct examination of Simmons, the prosecutor played a surveillance videotape of the bar on the night of the shooting and Simmons identified several people he knew. He also identified a man shown on tape several times as the man he saw leaving the scene in the car after the shooting and identified a car shown on tape as the one he saw the man get into before leaving the scene. Simmons identified appellant at trial as the person he had seen that night who he believed shot Patterson.
Amy Johnson, who had known Patterson since grade school, testified that she was at the Laurel Lounge with friends on the evening of October 9, 2009. Patterson arrived at the bar after 10:30 p.m. She and her friends were leaving the bar about 1:15 a.m. when she heard a man say, "Yeah, time for you all to get up out of here . . . because it's about to get ugly out here." The man was a tall, light-skinned African-American, with acne on his face. She identified appellant at trial as that man. Seconds later, as Johnson was walking away from the bar, she heard a gunshot. She and her friends got into her car and drove around the block. When they drove back to the bar, she saw Patterson lying facedown on the ground.
Police interviewed Raleigh Dangerfield, Darren Simmons, William Powell, and Nathaniel Powell within several days of the shooting. Each man identified appellant as the shooter in a photo lineup. Dangerfield, William, and Nathaniel also identified appellant as the shooter in a videotape they were shown of the interior of the bar on the night of the shooting. Witnesses also identified the silver Dodge Caliber automobile that the shooter left in after the shooting. In his videotaped interview, William said that immediately before he heard the gunshot, appellant calmly told people outside the bar that they needed to go home or " 'get out of here.' " When Patterson asked who he was talking about, appellant said, " 'Don't worry about what I'm talking about, not y'all.' " This interaction continued for up to a couple of minutes, until appellant shot Patterson. In the videotaped interview, William also said that when he saw appellant take a black gun out of his pants pocket and take a step back, he ran away and did not see the actual shooting.
Nathaniel Powell expressed the least certainty in his identification of appellant in both the surveillance videos and photo lineup, saying the person looked like the shooter, but he was not positive.
These witnesses' statements had been summarized in police reports that were provided to the defense. Copies of these documents were found in appellant's possession at the jail with handwritten notes on them.
Sergeant Rachael Van Sloten testified that videotapes from the bar's surveillance cameras showed appellant both inside and outside of the bar on the night of the shooting. The surveillance video also showed appellant getting into and out of the Dodge Caliber repeatedly during the evening and ultimately showed him running to and driving away in the car moments after the shooting.
The bar's owner, Greg McGlinn, testified about the surveillance cameras at the Laurel Lounge—four inside and three outside the bar—and explained that there was a blind spot at the corner of 38th Street and MacArthur Boulevard, which was not captured by the cameras. Richard Torres, in charge of security at the Laurel Lounge, identified appellant from an interior surveillance video as having been in the bar on the night of the shooting.
Forensic pathologist Thomas Rogers performed an autopsy on Lawrence Patterson. Patterson had a gunshot entrance wound inside his mouth, with an exit wound in the right back side of his neck. The cause of his death was a gunshot wound to the head and neck.
A Budget Rental Car employee testified that appellant regularly rented cars from Budget Rental Car over a six- or eight-month period. On September 30, 2009, he rented a tan or silver Dodge Caliber. He returned the Caliber to Budget on October 13, four days after the shooting, and rented a silver Hyundai Elantra.
Oakland Police Officer Bradley Baker testified that, on the evening of October 14, 2009, he drove in an unmarked police vehicle to an address in Oakland to look for any vehicles associated with appellant and saw the Hyundai rental car. After about 10 minutes, he saw the car being driven away.
Alameda County Sheriff's Deputy Von Wissmiller testified that he was driving in his marked police vehicle when he saw a silver Hyundai run a red light. He turned on his vehicle's overhead lights and activated the siren in an attempt to make a traffic stop. The car traveled for another hundred feet before pulling over to the left. After Wissmiller and his partner exited their patrol car and started walking toward the Hyundai, it took off. The deputies got back into their vehicle and pursued the Hyundai, which they found crashed into a parked car. They saw the driver running away on foot. Wissmiller followed the person, whom he identified at trial as appellant, in his patrol car for half a block before getting out of the car and chasing him on foot. He lost sight of appellant after appellant went over a fence into a backyard. Police then set up a perimeter to contain appellant.
Officer Baker saw the crash and drove half a mile to the apartment complex at which he had originally seen the Hyundai. Once there, he saw the person who had been in the Hyundai exiting the building. At trial, he identified that person as appellant. He subsequently saw appellant pull up to the apartment complex in a black Volvo station wagon, get out of the car, and enter the building's garage. Baker summoned other officers to the scene and they arrested appellant.
Police used appellant's key to enter the apartment he shared with his girlfriend, Michelle May. Baker located May in the bathroom, standing fully clothed in the bathtub, behind a shower curtain. In the apartment, police found approximately 36 grams of suspected base cocaine; a bag containing a half-pound of marijuana, as well as two other bags containing small amounts of marijuana; two digital scales; a glass beaker; and other Ziploc bags and packaging material consistent with packaging for narcotics and marijuana trafficking. Baker estimated that the marijuana had a street value of between $750 and $2,500 and the cocaine had a street value of about $1,000. He opined that the drugs were possessed for the purpose of sale. Three boxes of nine-millimeter ammunition were found in the building's garage.
In addition, cellophane bags of suspected crack cocaine and suspected marijuana were found about 25 feet from the site of the Hyundai's collision. Police searched the Hyundai and found a Budget Rental Car agreement with appellant's name on it, and also found suspected marijuana "in various locations inside the vehicle."
On the night appellant was arrested, his girlfriend, Michelle May, told appellant's sister, Latasha Johns, to call the police to report the Hyundai stolen. May claimed she did this because she "figured" the car was stolen, but did not want to talk to the police herself. Johns testified that she falsely told police the car had been carjacked from her to get a faster response from them.
Erik Jensen, also known as "White-E" or "E," testified that he had known appellant for many years, from the time they both lived in the upper High Street neighborhood of Oakland. During 2009, Jensen bought cocaine and marijuana from appellant approximately two to three times a week, both for his own use and to resell. Appellant had dealt drugs "all up and down High Street." When appellant went to jail, Jensen began buying the drugs from appellant's girlfriend, Michelle May.
Jensen testified that May, or possibly someone who had been in the bar on the night of the shooting, had told him that appellant shot Patterson because he called appellant a snitch. May also said "something about his temper."
After appellant's arrest, May brought Jensen three letters she said were from appellant. May brought the first letter to Jensen's home about a month after he heard appellant was in jail. In the first letter, appellant explained "what was going on" with his case and asked if Jensen would accept a "contract" to "murder the four witnesses." In that letter, appellant also said he would pay Jensen "$5,000 per hit" and asked if Jensen knew who the victims were. Jensen told May "it wasn't cool to bring letters like that." He threw away the letter because he did not believe it was real and did not know "if somebody was setting me up."
About a month later, May brought Jensen another letter from appellant. May said they were still trying to "fill the contract," but there were certain things appellant needed to do first. In this letter, which he kept, Jensen understood the statement, "If I holla at one, I might as well holla at all," to mean, "If I kill one, I might as well kill them all," i.e., all of the witnesses. He also understood the letter to say that appellant would get all the money to pay Jensen and would provide him with a gun to do the job. Jensen asked May what kind of gun it would be, and May said, "I got a big one or a little one."
This second letter read in relevant part: "I apologize for taking so long to get back at you, I'm still trying to line everything up. It's more complicated than I thought. I know what I need to know, I just need a lil help putting these final pieces together. I thought it was only two. Actually it's three, and 1 strong possible. They all hang at that Park behind Frick. Do you know Raleigh Dangerfield, Darren Simmons A.K.A. Patron, Lil Will & Nate Powell? Lil Will & Nate are brothers, one pointed me out on camera, the other ain't sure. My thing is, if I holla at one, I might as well holla at all. I'm getting more paper together real quick cause I need to make this happen. Do you know any of these 4? My other thing is, I got 1 for you, but I'm only giving it up if you use one for me, feel me. The money goods, I'm just making sure I have enough for that whole mission. Like I said, 1 is better than nothing, but I'm trying to line up 3 or all 4. So if you know any of these dudes, get at me A.S.A.P. . . ."
About three weeks to a month later, May brought Jensen a third letter. She told him "they were ready to get it done, asked me would I accept the contract." She said they "needed it done quick" and he "had to jump" because they had someone else if he did not want to do it. Jensen also kept this letter. Among other things, Jensen understood the letter to mean that appellant wanted him to complete the contract with his own gun and that now he wanted him to kill only one witness, rather than four. The victim was to be Raleigh Dangerfield, who lived close to Jensen and who appellant apparently thought would be easy to kill. After reading the letter, Jensen put it aside and ignored it. He briefly considered accepting the contract, but did not do so because too many people knew about it.
This third letter read in relevant part: "E, what's up wit it? I got your message and I appreciate your offer but if your not speaking my language, I will not understand you. You already know what I'm talking about, that 20$, that was phone talk! Feel me? . . . [I]f you got your own banger and you keep that bad company out of your business, I got something line-up for you. It's so easy as takin candy from a baby, and its only five minutes from you. So if you want to help me, I got five bucks for you. Holla back."
Jensen testified that he did not feel good about testifying against appellant because it was the "[f]irst time I had to snitch on anybody." In May 2010, when Jensen was in custody for possession of narcotics for sale, he provided police with information about the two letters he had kept, which police had seen while searching his residence. He asked for "a break" in his case in return for the information, but did not get one. He was a drug addict and wanted to get out of jail as quickly as he could. Jensen subsequently pleaded guilty and was convicted of possession of a controlled substance while armed.
Oakland Police Sergeant Rachael Van Sloten testified that she first interviewed Jensen in May 2010 and received his consent to search his room at his mother's house. She later recovered the two letters from a drawer in Jensen's bedroom, where he had told her they would be.
Jensen was again arrested on October 3, 2010, for possession of drugs and being a felon in possession of a firearm. While he was in custody, in approximately December 2010, Jensen met with the prosecutor and initially refused the prosecutor's request that he testify at trial. He eventually agreed to testify truthfully at trial in return for getting out of jail and the relocation of his family. While Jensen was still in jail, an inmate named Arthur Walton, who slept next to him, approached him after returning from court with a letter from appellant. Walton showed him the note, which warned him not to go to court or testify because appellant was holding people back from killing his mother until he testified. Walton told him that he got the note when he encountered appellant in the "bullpen" at court during jury selection in appellant's case. Appellant was asking all the inmates whether they were housed near Jensen, whom he had described as "a white boy that talked black." Jensen immediately called the prosecutor and police and asked them to warn his mother to be careful.
Jensen is biracial.
Arthur Walton testified that he was in a holding cell at court, when someone— maybe appellant—asked him to deliver a note to an inmate who looked white but talked Black, i.e., Erik Jensen. The note said something about trying to help Jensen's mother. Sergeant Van Sloten testified that, in an interview with Walton, he told her that appellant had approached him in a holding cell the previous month and had given him a note to give to Jensen along with the message "to not come to court, and that he was the reason why . . . Jensen's mother was still alive and not hurt."
Michelle May testified that appellant had been her boyfriend since 2005. Since his arrest, she had visited him in jail twice a week, had talked to him on the phone almost every day, and had written letters to him also. Although she had called some of appellant's friends at his request, appellant had never asked her to deliver a letter to anyone, including Erik Jensen. She denied telling Jensen or anyone else that appellant shot Patterson because Patterson had called him a snitch. She also denied ever offering anyone a gun to kill witnesses in this case or offering anyone money to bribe or kill witnesses. She denied that appellant had told her he wanted her to bribe witnesses or find someone to kill them.
Several tape-recorded phone calls between appellant and May while appellant was in jail were played for the jury. In one phone conversation, May said that "Silver Dude" had not called yet and that she gave money to "Dude, " in the amount "you told him." Appellant seemed upset that she had given "seven" to "this nigga." May testified that they could have been talking about his lawyer, who was the only person to whom she gave $7,000. In another call, in which May told appellant, " 'I'm out here risking my freedom for you, blood,' " she was talking about having to deal with his family and driving around in an unregistered car. In another phone call, appellant asked May whether she had ever given "Silver Dude that letter," and she said she had. In yet another call, appellant asked whether she had ever gotten in contact with "Dave," and said he wanted her to give him "that letter, too." At trial, May said appellant might have been talking about something other than a letter, since they were always talking in code. She testified that she had never gotten letters from appellant to give to anyone.
In another phone call, appellant asked whether May had "holler[ed]" at Z. May responded that she had "rode up" on Lee. Appellant told May to call the "other dude" and tell him that "they ain't right" and that "Big Lee know exactly who they is." He mentioned "the short one" and "the other one with the braids." ~(RT 724-726; SCT 841-842)~ When appellant asked in another call whether May had talked to Z, Dude, or Lee, May responded that Z had talked about "[s]hit" and "the honor," and that she did not know whether Dude was "trippin" "just like everybody else." At trial, May testified that she did not remember what she meant when she said "the honor." In another call, appellant told May she needed to watch what she said on the phone because "this shit is serious" and "ain't no motherfucking game." Appellant also mentioned "[t]hat letter" and asked May, "[D]id you ever handle your business with what I asked you to do?" May testified that appellant might have been talking about a letter to appellant's mother and "business" may have referred to May moving or getting money for a lawyer.
May, subsequently recalled as a witness, denied ever selling drugs and denied knowing there were drugs in her apartment on the night appellant was arrested.
Alameda County Deputy District Attorney John Brouhard testified that, in 2004, appellant had provided helpful information to police and prosecutors in a murder case, including incriminating statements the defendant had made to him about the murder. Appellant's name was included in discovery materials provided to the defense in that case. The prosecution entered into an agreement with appellant that, among other things, he would testify in the murder case in exchange for no more than a year in jail on a pending matter, rather than the eleven years to which he could have been sentenced. The defendant in the murder case ultimately entered into a plea agreement, so appellant's testimony was never needed. Although appellant had been prepared to testify, he was later sentenced to prison because he did not comply with other terms of his plea agreement.
Defense Case
Joe Powell (Joe), a college student on basketball and music scholarships, testified that he was at the Laurel Lounge on the night of the shooting and played pool with appellant. The surveillance video from the bar showed Joe and appellant outside the bar at one point. While outside, Joe saw three men arguing in front of the door to the bar. Appellant was on the phone at the time, about 30 feet away. Joe then saw a man walk up to the men who were arguing, saw his right hand move, and then heard a gunshot. Joe ran back inside the bar.
DISCUSSION
Direct Appeal
I. Admission of Evidence that Appellant Sold Drugs
Appellant contends the trial court erred when it permitted the prosecution to present irrelevant evidence that appellant sold drugs.
A. Trial Court Background
Defense counsel filed a motion in limine seeking to exclude evidence that appellant was a drug dealer. The prosecutor indicated that she did not intend to present any such evidence in her case-in-chief. The trial court granted the motion, but agreed with the prosecutor that evidence of appellant's drug-dealing association with Jensen might become admissible if the defense tried to undermine Jensen's testimony that he knew appellant and Michelle May well. During the direct examination of Jensen, there was no mention of drug dealing and, on cross-examination, defense counsel did not challenge Jensen's relationship with appellant.
The prosecution thereafter presented testimony about the attempt by police to stop appellant's car, the subsequent pursuit, and his arrest. On cross-examination, defense counsel elicited testimony from Deputy Von Wissmiller that he found "cellophane bags with suspected narcotics, cocaine, crack, and marijuana buds " approximately 25 feet from the collision site.
The court summarized the defense's purpose in eliciting this testimony, namely, its desire "to highlight that the person who ran from that vehicle . . . may have left a trail of drugs, thus, whoever was fleeing that car would have the reason to flee because he didn't want to be caught with drugs, as opposed to, he didn't want to get arrested for a murder."
Following Wissmiller's testimony, the court summarized a side bar that had taken place earlier and explained its tentative finding that the defense had "open[ed] the door" by eliciting testimony about drugs and stating that it no longer saw the prejudice of evidence that he sold drugs, given that Wissmiller's testimony had shown he was a drug dealer "or at least a drug . . . possessor . . . ." The next day, the court reaffirmed its tentative ruling, stating that defense counsel had made a "logical and fair tactical decision. Boy, let's trade this unexplained panicky flight from the accused murderer as his motive to flee, to some guy with some dope in his car, in his rental car, who already is known to associate with dope dealers and hang around with dope dealers. [¶] Okay, now, they are going to know he's a dope dealer too. Not a big tradeoff for getting an explanation for why he would flee the scene of an accident . . . ."
The prosecution then recalled Erik Jensen as a witness. He testified that he had bought cocaine and marijuana from appellant regularly for years, sometimes for his own use and sometimes to resell and that, after appellant went to jail, he bought the drugs from Michelle May. May was also recalled as a witness, but denied ever selling drugs.
Officer Baker then testified about the drugs and paraphernalia found in the apartment shared by appellant and May, opining that the drugs were possessed for sale.
B. Legal Analysis
"Subject to certain limitations inapplicable to the present discussion, all relevant evidence is admissible [citations], and relevant evidence is defined as evidence 'having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' [Citation.] Evidence is relevant if it tends ' "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive. [Citations.]' [Citations.] The trial court has considerable discretion in determining the relevance of evidence. [Citations.]" (People v. Williams (2008) 43 Cal.4th 584, 633-634 (Williams); see Evid. Code, §§ 210, 351.)
Appellant argues that the evidence that he sold drugs was not relevant to any material fact at issue at trial. Instead, according to appellant, it was improper evidence of bad character that likely caused the jury to view his drug dealing as further evidence of his guilt of murder.
Respondent disagrees and argues that the evidence was of at least some relevance to a possible motive for shooting Patterson: that Patterson had injured appellant's reputation as a drug dealer by calling him a snitch. (See Williams, supra, 43 Cal.4th at pp. 633-634; cf. Evid. Code, § 1101, subd. (b) [evidence that a person committed a crime is admissible when relevant to prove some fact (such as, inter alia, motive) "other than his or her disposition to commit such an act"].) Although the trial court initially believed that the potential prejudice of this evidence outweighed its probative value (see Evid. Code, § 352), once the defense chose to elicit police testimony regarding appellant's possession of two types of drugs at the time he fled police, the court reweighed the proposed evidence and found that the prejudice of additional evidence regarding drugs was outweighed by its probative value. (See ibid.)
The prosecutor discussed this theory of motive to the jury during closing argument. Defense counsel did not object, but appellant now asserts that this theory was unsupported and lacked foundation.
We are inclined to agree with respondent that the court was reasonable in reaching this conclusion. (See Williams, supra, 43 Cal.4th at pp. 633-634.) Moreover, even assuming the court abused its discretion, appellant was not thereby prejudiced. Four eyewitness identified appellant as the shooter; video surveillance cameras showed him inside and outside the Laurel Lounge over the course of the night and showed him running to and driving away in the car described by witnesses as that used by the shooter; he fled from police before his arrest; and Eric Jensen's testimony, supported by the two letters admitted into evidence and recorded telephone conversations with Michelle May, provided evidence that appellant attempted to have some or all of the eyewitnesses killed in exchange for money. Evidence that appellant sold drugs—in addition to possessing and transporting them—can hardly be said to have tipped the balance in a case with such overwhelming evidence of guilt. Given the circumstances, we do not believe the additional drug-related evidence would have so inflamed the jury that it would therefore convict him of murder. Thus, even if, as appellant urges, the court erred and the federal constitutional standard of review is applicable here, we conclude such an error was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)
That several of the eyewitnesses were reluctant to testify against appellant at trial, given their expressed fear for their own or their families' safety, does not lessen the impact of the evidence that they identified appellant as the shooter—most of them definitively—in photo lineups and videotaped interviews shortly after the shooting.
Appellant notes that one defense eyewitness provided testimony that someone else shot Patterson. Given the array of extremely strong evidence of guilt, Joe Powell's testimony cannot be said to have made this a close case.
II. Prosecutorial Misconduct
Appellant contends the prosecutor twice committed misconduct during rebuttal closing argument when she misstated the law and stated facts not in evidence.
The California Supreme Court has explained that " ' " '[a] prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." ' " [Citations.] 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 court or jury." ' " [Citation.]' [Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill).)The defendant need not show that the prosecutor acted in bad faith. (Id. at p. 822.)
Our Supreme Court has further observed that " ' " 'a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] . . . .' " ' [¶] Prosecutors, however, are held to an elevated standard of conduct . . . because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state. [Citation.]" (Hill, supra, 17 Cal.4th at pp. 819-820.)
In evaluating a claim of prosecutorial misconduct based on a prosecutor's comments to the jury, we must determine whether "there is a reasonable possibility that the jury construed or applied the prosecutor's comments in an objectionable manner. [Citations.]" (People v. Valdez (2004) 32 Cal.4th 73, 132-133; People v. Berryman (1993) 6 Cal.4th 1048, 1072, overruled on another ground in Hill, supra, 17 Cal.4th at p. 823, fn. 1.)
A. Alleged Misstatement of the Law
Appellant first argues that the prosecutor improperly insinuated to the jury that appellant would have to be retried if any juror were not convinced of his guilt. According to appellant, this was an inaccurate statement of the law because a defendant will not necessarily be retried after a mistrial due to a deadlocked jury. (See People v. Gainer (1977) 19 Cal.3d 835, 852, disapproved on another ground in People v. Valdez (2012) 55 Cal.4th 82, 163 ["an instruction which implies that a hung jury will assuredly result in a retrial misstates the law"].) He avers that the misconduct violated his constitutional right to due process.
The prosecutor, Annie Saadi, began her rebuttal as follows: "Ladies and gentlemen, the last thing you want to do is see me come up here and talk to you again, you may be wondering, 'Goodness, after yesterday, what more does she have to say?'
"Well, this is very important, because if just one of you, one of you misses the point, we're going to have to start this all over again." (Italics added.)
Defense counsel immediately objected, calling the prosecutor's statement "Completely inappropriate." The court agreed with counsel that "that probably is an objection. It's not missing the point. Don't argue it that way anymore." The court then asked counsel if there was anything else he wanted the court to say. After counsel responded in the negative, the court said: "I didn't mean to make it sound unimportant, but I don't know how to unring the bell. So start it again in a different way."
It is misconduct for a prosecutor to misstate the law by attempting " 'to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements.' " (Hill, supra, 17 Cal.4th at pp. 829-830.)
Although the prosecutor's remark in this case was brief and somewhat unclear, it appears to us that she most likely was, as appellant states, admonishing the jury to pay attention because if any one of them did not find appellant guilty, a retrial would be necessary. Assuming this was the case, the prosecutor's comment was a misstatement of the law and constituted misconduct. (See Hill, supra, 17 Cal.4th at pp. 829-830.) Nonetheless, in light of the brevity of the comment, its ambiguity, the court's immediate statement that "[i]t's not missing the point," and its admonition to the prosecutor not to "argue it that way anymore," appellant has not shown prejudice under any standard. (See People v. Lynch (2010) 50 Cal.4th 693, 760, overruled on another ground in People v. McKinnon (2011) 52 Cal.4th 610, 636-638.)
This conclusion is buttressed by the fact that the court properly instructed the jury that, "[i]f anything concerning the law said by the attorneys in their arguments . . . conflicts with my instructions on the law, you must follow my instructions" and that "[s]tatements made by the attorneys during the trial are not evidence." (See CALJIC Nos. 1.00, 1.02.) The court also instructed the jury that the "The People and the defendant are entitled to the individual opinion of each juror" and that the jurors should "not decide any question in a particular way because a majority of the jurors, or any of them, favor such a decision." (See CALJIC No. 17.40.)
In sum, we conclude that it is extremely unlikely the jurors would have been so influenced by the statement that they would ignore the court's instructions, assuming they even understood the prosecutor's apparent implication. (See People v. Lynch, supra, 50 Cal.4th at p. 760; see also People v. Valdez, supra, 32 Cal.4th at pp. 132-133.) In a case with overwhelming evidence of guilt, appellant cannot show prejudice under either the state or federal constitutional standard of error. (See Chapman, supra, 386 U.S. at p. 24; People v. Watson (1956) 46 Cal.2d 818, 836.)
B. Alleged Stating of Facts Not in Evidence
Appellant's second argument is that the prosecutor improperly argued to the jury that testing the two letters Erik Jensen believed were from appellant for fingerprints would have destroyed the letters or made them unreadable, despite the absence of evidence in the record to support her assertion.
During closing argument, defense counsel argued against the letters having been written by appellant, rhetorically asking, inter alia: "Did they [the prosecution] even bother to fingerprint these to see if Michelle May's fingerprints were on these or my client's? No." Subsequently, during her rebuttal, the prosecutor stated: "Mr. Babcock [defense counsel] also wants to raise some doubt in you about, 'Oh, why weren't the letters given to Erik Jensen, why weren't they fingerprinted? Oh, fingerprinted, powder all over it,' and then we're going to get another objection from the defense, 'See, you can't read these letters, it's been powdered all over, the prosecution has destroyed the evidence.' So that makes no sense.
"The evidence—the best evidence is actually seeing the letters themselves. So we're going to go ahead and try to get prints, and then destroy what the contents of the letters are."
At that point, defense counsel objected, stating: "There's no evidence that printing would destroy anything. That's—testifying to that is basically not true." The court responded: "I'm going to overrule the objection. I think both points are well within the realm of argument. One can always say what wouldn't be shown—well, I don't want to make any other points. Overruled." The prosecutor then moved on to another topic.
"Argument is improper when it is neither based on the evidence nor related to a matter of common knowledge." (People v. Pitts (1990) 223 Cal.App.3d 606, 702, superseded by statute on other grounds.) A prosecutor's reference to facts not in evidence constitutes misconduct "because such statements 'tend[] to make the prosecutor his own witness—offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, "although worthless as a matter of law, can be 'dynamite' to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence."[Citations.]' " (Hill, supra, 17 Cal.4th at p. 828.)
Although the prosecutor's remarks may have been close to the line, we agree with the trial court that the remarks were within the parameters of argument. (See Hill, supra, 17 Cal.4th at p. 819 [" ' " 'during summation[, counsel] may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature' " ' "].) After defense counsel berated the prosecution for not bothering to check the letters for fingerprints, the prosecutor, in a flippant response, posited that if the prosecution had tested the letters for prints and they were covered with powder and unreadable, the defense would complain about that too. Contrary to appellant's assertion, this was not a momentous point made by the prosecutor about the state of fingerprint evidence. It is hard to imagine that the jury perceived the comments as other than a sarcastic, off-the-cuff retort to defense counsel's argument about the prosecution's failure to test for fingerprints.
The prosecutor's comments did not constitute misconduct. (Compare Hill, supra, 17 Cal.4th at p. 829 [to the extent prosecutor implied by her comments that "an expert witness would have testified favorably for the prosecution had she called one, she committed misconduct, for she called no such witness"].)
III. Trial Court's Refusal to Instruct on Voluntary
Manslaughter Based on Heat of Passion
Appellant contends the trial court erred when it refused to instruct the jury on the lesser included offense of voluntary manslaughter based on sudden quarrel or heat of passion.
A. Trial Court Background
During early discussions with the trial court about instructions, defense counsel requested that the court instruct the jury on voluntary manslaughter based on heat of passion. The trial court preliminarily stated that it was "not inclined" to give such instructions because this case appeared to be more of a "who-done-it." Near the conclusion of the prosecution case, the court confirmed that it would not give the manslaughter instructions, stating: "It seems just too thin in this, who done it, to suggest in any way somebody was doing it out of passion or anything like that." The court also told counsel that Jensen's testimony that May told him that appellant had a temper "may be your best piece of evidence on where you might get some stuff about manslaughter, but there is not enough there, and also probably complicates your case."
The court instructed the jury on first and second degree murder. (CALJIC Nos. 8.10, 8.11, 8.20, 8.30, 8.70, 8.71.)
B. Legal Analysis
" ' "It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citations], but not when there is no evidence that the offense was less than that charged. [Citations.]' " (People v. Breverman (1998) 19 Cal.4th 142, 154.) If there is substantial evidence supporting such an instruction, it must be given even if it is inconsistent with the defense presented. (People v. Barton (1995) 12 Cal.4th 186, 194-195 (Barton).) However, "the trial court need not instruct on a lesser included offense whenever any evidence, no matter how weak, is presented to support an instruction, but only when the evidence is substantial enough to merit consideration by the jury. [Citation.]" (Barton, at p. 195, fn. 4.) We independently review a claim that the trial court erred in failing to instruct on a lesser included offense. (People v. Cole (2004) 33 Cal.4th 1158, 1215.)
"Voluntary manslaughter is 'the unlawful killing of a human being without malice' 'upon a sudden quarrel or heat of passion.' (§ 192, subd. (a).) An unlawful killing is voluntary manslaughter only 'if the killer's reason was actually obscured as the result of a strong passion aroused by a "provocation" sufficient to cause an " 'ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.' " [Citations.]' [Citation.] 'The provocation must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment. Adequate provocation . . . must be affirmatively demonstrated.' [Citation.]" (People v. Thomas (2012) 53 Cal.4th 771, 813.)
In the present case, according to appellant, the substantial evidence showing heat of passion voluntary manslaughter included evidence of provocation, specifically, Erik Jensen's testimony and prior statements to police that he heard appellant killed Patterson because Patterson had called appellant a snitch in the bar. He also relies on the testimony of several reluctant prosecution witnesses that being known as a snitch would result both in danger to one's life and the lowering of one's esteem in the community. In addition, Jensen testified that May had said something about appellant's temper. Appellant also notes that the prosecutor argued that appellant's drug dealing business would suffer if he were considered a snitch.
We do not agree that this evidence was sufficient to obligate the trial court to instruct the jury on voluntary manslaughter. First, although evidence was presented at trial that being considered a snitch in appellant's community is a major stigma, appellant has not affirmatively demonstrated that Patterson ostensibly calling him a snitch was such extreme provocation " 'that an average, sober person would be so inflamed that he or she would lose reason and judgment.' " (Thomas, supra, 53 Cal.4th at p. 813.)
Second, the evidence in the record shows that, rather than becoming enraged and shooting Patterson while in a state of passion, appellant waited until the bar was preparing to close and Patterson came outside and was in a blind spot for the surveillance cameras. At that point, appellant calmly warned people to get out of the way and told Patterson he should not leave. He then took a step back, pulled a gun out of his pants pocket, and fired a single shot into Patterson's mouth. Evidence of appellant's conduct at the bar simply does not provide substantial evidence that when he shot Patterson, " '[his] reason was actually obscured as the result of strong passion . . . .' " (Thomas, supra, 53 Cal.4th at p. 813.)
Thus, the slight evidence to which appellant refers—that he might have become angry after Patterson supposedly called him a snitch—simply was not sufficient to warrant instruction on voluntary manslaughter based on heat of passion. (See Thomas, supra, 53 Cal.4th at p. 813; see also Barton, supra, 12 Cal.4th at p. 195, fn. 4 [trial court is not required to instruct on lesser included offense "whenever any evidence, no matter how weak, is presented to support an instruction"]; cf. People v. Gutierrez (2002) 28 Cal.4th 1083, 1144 ["If anything, defendant appears to have acted out of a passion for revenge, which will not serve to reduce murder to manslaughter"].)
Habeas Petition
In his habeas petition, appellant contends defense counsel was incompetent, first, for failing to move to discharge two jurors for misconduct and, second, for failing to ask the court to permit him to continue his closing argument after lunch, rather than ending it prematurely.
In a habeas case, the reviewing court must determine whether the "petition states a prima facie case for relief, i.e., whether it states facts which, if true, entitle the petitioner to relief." (In re Clark (1993) 5 Cal.4th 750, 769, fn. 9.)
To prove ineffective assistance of counsel, a defendant must show that "counsel's representation fell below an objective standard of reasonableness . . . under prevailing professional norms." (Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland).) In addition, the defendant must affirmatively establish prejudice by showing "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.)
I. Counsel's Failure to Move to Discharge Two Jurors
Appellant contends defense counsel was incompetent for failing to move to discharge two jurors for misconduct. He asserts that the two jurors lied on their jury questionnaires about not knowing potential witnesses and did not reveal their knowledge until the middle of trial.
"We begin with the general proposition that one accused of a crime has a constitutional right to a trial by impartial jurors. [Citations.] ' "The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to trial by jury guaranteed by the Constitution." ' [Citations.]" (In re Hitchings (1993) 6 Cal.4th 97, 110.)
A. Juror No. 8
Potential jurors in this case were asked to complete a jury questionnaire that asked, inter alia, "Do you know any of the court staff, the attorneys, the victims, the defendant or the potential witnesses on the list below? . . . [¶] If yes, please describe." Included on the list was Richard Torres, a security employee at the Laurel Lounge, who did not see the shooting, but testified to the layout of the bar and the people who were inside the bar on the night of the shooting.
The record reflects that, when Torres approached the witness stand during trial, Juror No. 8 informed the court that he recognized Torres as a "cousin." The court inquired whether Juror No. 8 believed this would be a problem in terms of being fair in the case and the juror said no. The court then ascertained from the prosecutor that Torres was going to testify regarding security at the bar, what he saw after the shooting took place, and identify people on the surveillance video taken inside the bar; Torres had not seen the shooting itself. Defense counsel told the court that he did not "see an issue" and did not move to discharge Juror No. 8.
Appellant states that Juror No. 8 did not identify Torres on his jury questionnaire as someone he knew, although appellant has not included the juror's completed questionnaire in the record. Assuming this statement is correct, appellant has not made a prima facie showing of juror misconduct on the part of Juror No. 8 since such misconduct involves a juror's intentional misstatement or concealment of a material fact. (In re Hitchings, supra, 6 Cal.4th at p. 110; accord, People v. Tate (2010) 49 Cal.4th 635, 672.) Given that "Richard Torres" is not a unique name and Juror No. 8 told the court he recognized Torres as soon as Torres entered the courtroom, the record reflects an inadvertent failure to recognize the name of a "cousin" rather than any intentional concealment of a material fact. (See In re Hitchings, supra, 6 Cal.4th at p. 110; accord, People v. Tate, supra, 49 Cal.4th at p. 672.) The court then conducted an inquiry that confirmed there would be no impact on Juror No. 8's ability to be fair. Defense counsel was not unreasonable in concluding that a motion to discharge Juror No. 8 would be denied as without merit. (See Strickland, supra, 466 U.S. at p. 688.)
B. Juror No. 7
Mack Gross, who was not on the list of potential witnesses and was not called as a witness, apparently attended appellant's trial. During the prosecution case, when the prosecutor asked Darren Simmons whether he recognized anyone in the courtroom who was present at the Laurel Lounge on the night of the shooting—presumably expecting him to identify appellant—Simmons responded that he recognized a couple of people, including "one friend Mack."
Later in the trial, while a Laurel Lounge surveillance videotape from the night Patterson was killed was being played for the jury, Sergeant Van Sloten pointed out various people witnesses had identified in the video, including Gross. Juror No. 7 interrupted the examination of Van Sloten to ask the court if he should "let the Court know that I believe I know the individual identified as Mack Gross." When the court asked how he knew Gross, the juror said that, "[i]f it's the same person that I know, I work with him." The court noted that Gross was not a witness in the case and questioned Juror No. 7, ascertaining that the juror and Gross had had no contact about the case and that the juror could be fair.
According to appellant, Juror No. 7 committed misconduct by failing to mention earlier in the trial that he believed he worked with Gross. However, because Gross neither was on the witness list nor testified, appellant has not demonstrated misconduct on the part of Juror No. 7. (See In re Hitchings, supra, 6 Cal.4th at p. 110; accord, People v. Tate, supra, 49 Cal.4th at p. 672 [intentional concealment of a material fact necessary for juror misconduct].) Hence, appellant cannot show that counsel was ineffective for failing to bring a motion requesting that this juror be discharged. (See Strickland, supra, 466 U.S. at p. 688.)
As to Juror No. 7, appellant also claims that he "told the trial court that he used to be a handwriting expert—since no handwriting expert witness was called to testify—this juror . . . asked the trial court if he could act as a handwriting expert in my trial when he already took an oath as a juror—not a witness for the prosecution." Respondent did not respond to this claim in its Opposition.
Late in the trial, as the jury was leaving for lunch, the court told a juror to leave a written question with the bailiff. The following exchange then took place between the court and counsel:
"[THE COURT:] Before we do anything else, a juror has a question about—it says 'expert notification handwriting,' but it just means an expert in writing.
"MR. BABCOCK [defense counsel]: Sounds like.
"THE COURT: So you all know what I know, so I would think the sergeant would be the person to know if they tried to give this to any experts to analyze, should be asked that." In his note, Juror No. 7 had asked: "Is there any expert notification [sic] handwriting on back of police report found in defendant's cell is the defendant's[?]"
This reference to a handwriting expert makes clear that, contrary to appellant's assertion, Juror No. 7 was not asking to act as a handwriting expert. Rather, the question related to whether the authorities had given the annotated police reports to any handwriting experts to analyze, and the court suggested that "the sergeant" be asked that question. Again, no ineffective assistance of counsel has been shown by counsel's failure to move to discharge Juror No. 7 for misconduct. (See Strickland, supra, 466 U.S. at p. 688.)
II. Counsel's Failure to Ask the Court to Permit Him
to Continue Closing Argument After Lunch
Appellant contends defense counsel was incompetent for failing to ask the trial court to permit him to continue his closing argument after lunch, rather than ending it prematurely. (See Strickland, supra, 466 U.S. 668.)
The prosecutor's closing argument in this case covered approximately 64 pages of reporter's transcript. Defense counsel followed with his argument, which covered approximately 31 pages of reporter's transcript. Appellant points to a comment counsel made near the end of his argument, when he stated: "One other thing that doesn't make any sense to me is where they found the casing. You remember—I'm not going to blow it up ['it' apparently being a photograph of the scene of the shooting] because I promised the judge I would get done before lunch—but, remember the casing, found all the way over here. They say Mr. Patterson was shot right here. (Indicating.) I don't know how far that is, we don't have an exact measurement. . . ." (Italics added.)
There is no indication in the record that the trial court imposed any time limit on defense counsel's closing argument. Nor does our review of counsel's argument suggest that it was rushed or incomplete. Counsel responded to each of the points the prosecutor made in her argument and thoroughly discussed the evidence, going through the surveillance videos, casting doubt on the prosecution witnesses' credibility and observations, discussing the evidence of consciousness of guilt, explaining the phone calls between appellant and Michelle May, and arguing that the letters supposedly written by appellant were either not written by him or were not about killing witnesses. He also raised doubts about the alleged motive (being called a snitch) and discussed the instructions and the law, particularly regarding circumstantial evidence and premeditation. Counsel's statement that he had "promised the judge I would get done before lunch" suggests either that he wanted to keep his argument moving to hold the jury's attention or that he had also told the trial court he believed he could finish the argument during the morning session and had endeavored to do so, or both. Appellant's claim that counsel was ineffective for failing to request permission to continue his closing argument after lunch cannot succeed. (See Strickland, supra, 466 U.S. at p. 688.)
In his habeas petition, appellant states that, after he was convicted, he asked counsel why he had not pointed out "several key factors" during closing argument. According to appellant, counsel responded that the trial court made him cut his argument short and that appellant's appellate attorney should contact him so he could "explain the trial court imposing a limitation on . . . closing argument." Appellant further states that his appellate attorney later said that defense counsel had told him that, "although he felt rush[ed], he could have objected if he needed more time." Appellant has presented no declarations related to the conversations he describes in his habeas petition, and the record does not provide evidence of a time limit imposed by the trial court. (See People v. Duvall (1995) 9 Cal.4th 464, 474 [habeas petition must include copies of all reasonably available documentary evidence supporting a claim, including affidavits or declarations].)
In conclusion, because appellant has not stated a prima facie case showing that counsel was ineffective, appellant's habeas petition must be denied. (See In re Clark, supra, 5 Cal.4th at p. 769, fn. 9.)
DISPOSITION
In a separate order, we also deny appellant's petition for writ of habeas corpus.
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Kline, P.J.
We concur: ______________________
Haerle, J.
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Lambden, J.