Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 62-070475
BUTZ , J.A jury convicted defendant John Calvin Lacey, Jr., of passing a fictitious or altered bill with the intent to defraud. (Pen. Code, § 476.) In a bifurcated proceeding, the trial court found that defendant had two strikes (id., §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and four prior prison terms (id., § 667.5, subd. (b)).
After granting defendant’s motion to strike one strike, the trial court sentenced defendant to a total term of 10 years in state prison.
On appeal defendant contends: (1) he was deprived of due process and the effective assistance of counsel when inadmissible evidence of his confession came in without objection; (2) the prosecutor committed prejudicial misconduct by eliciting the evidence; (3) the trial court improperly admitted opinion testimony about defendant’s state of mind; (4) the trial court improperly admitted evidence of subsequent uncharged acts; and (5) the cumulative impact of these errors compels reversal. Disagreeing with all of these contentions, we shall affirm the judgment.
FACTUAL BACKGROUND
In the early morning hours of December 18, 2006, at Thunder Valley Casino, defendant gave blackjack dealer Don Rivard four $100 bills to buy chips. After putting the bills in the table’s “drop box,” Rivard dealt a hand, which defendant played without winning or losing anything. He then gave Rivard four more $100 bills for chips.
Thinking it unusual for a player who still has all his original chips to buy more, Rivard checked the last two digits of the serial numbers on two of the bills; they were the same. Rivard discreetly called his floor supervisor over and suggested she inspect the bills. Security was also summoned, and several officers escorted defendant out.
Before defendant left, the casino’s graveyard-shift security supervisor, Mark Tabios, told him the bills were suspected of being counterfeit and asked where he had gotten them. Defendant, seeming apologetic, said he might have gotten them from a check-cashing place in Stockton. Tabios gave him a receipt and said that if the bills turned out to be legitimate, the casino would call him and he could pick up his money.
When all of defendant’s bills were inspected, all eight turned out to have the same serial number. According to Antonio Espinoza, a special agent with the California Department of Justice, Bureau of Gambling Control, their watermarks and security strips proved that the bills were $5 notes which had been washed out and overprinted to counterfeit $100 notes.
On February 22, 2007, Agent Espinoza, accompanied by Bureau of Gambling Control Special Agent Supervisor Aaron Wong, interviewed defendant at a restaurant in Modesto. Defendant now claimed the bills came from a $1,000 cash payment from “Joe” for driving a truck from the Los Angeles area to Sacramento. He also said that the casino had never called him to tell him the money was legitimate, although he had called the day after the incident to ask about it.
During the interview, Agent Espinoza asked to see defendant’s driver’s license. As defendant took it out of his pocket, a $5 bill came out with it; he put it back in his pocket. When Espinoza asked to see the bill, defendant said at first he did not have any money with him. But after Espinoza said he had already seen the bill, defendant gave it to him. Espinoza observed that it lacked a watermark and a security strip, which are found on all United States currency except $1 bills. Defendant claimed he had gotten it as change at a gas station.
The People did not put on witnesses to testify about defendant’s subsequent arrest and statements in custody, which were ruled inadmissible in limine except for impeachment. Defendant asserts, however, that Agent Espinoza told the jury defendant had confessed and that the prosecutor deliberately elicited this testimony. We discuss this subject further in parts I and II of the Discussion.
Defendant did not testify. He called blackjack dealer Rivard, who testified that defendant had shown him identification to support an application for a “player’s card.” Defendant also called security supervisor Tabios, who testified that he had been told by another security supervisor that a Black male seated in the pit had given defendant money earlier. (However, when security asked to see this person’s money, it proved to be legitimate.)
DISCUSSION
I
Defendant contends he was denied due process and the effective assistance of counsel because trial counsel did not object and request an admonition to the jury or demand a mistrial after Agent Espinoza revealed that defendant had confessed in custody--a confession which had been excluded from evidence in limine. We are not persuaded.
Even if the jury might have understood Agent Espinoza’s testimony, at the moment he gave it, to mean that defendant had confessed, defendant cannot show grounds for reversal. The prosecutor immediately clarified the point he was really trying to elicit from Espinoza. To dispel any possible confusion on the issue, the prosecutor told the jury in closing argument that defendant had never confessed. Defense counsel had a reasonable tactical purpose, which he explained on the record, for not objecting to Espinoza’s testimony or demanding a mistrial. Finally, any error was harmless by any standard because the evidence of defendant’s guilt was overwhelming.
Background
Defendant moved in limine to suppress his statements in custody on Miranda grounds. At an Evidence Code section 402 hearing on the motion, parole agent Michael Brodie and Special Agent Supervisor Wong testified that once Agent Espinoza finished interviewing defendant, he was taken into custody on a parole violation; thereafter, in response to questioning and without ever receiving Miranda advisements, he admitted first to Brodie and then to Wong that he knew the money was counterfeit before taking it to the casino.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
The prosecutor conceded the Miranda violation. The trial court ruled the statements inadmissible in the People’s case-in-chief.
When Agent Espinoza testified at trial, the prosecutor asked whether anyone had accompanied him to the restaurant. He initially answered: “Yes, sir. Parole from the Stanislaus County.” On counsel’s joint motion, the trial court ordered the answer stricken and directed the jury to disregard it.
Later, the prosecutor questioned Agent Espinoza about his written report of the interview. The colloquy began (italics added):
“Q. You prepared a report regarding your conversation with [defendant]?
“A. Yes, I did.
“Q. And page 75, Counsel. I would ask you to refer to your report, please, the top paragraph, I guess it’s number 10 that was just continued on page 75, the third full sentence of that.
“A. Report number what?
“Q. Report number 8.
“A. The second page?
“Q. The second page. Actually it’s got the number 3 on the bottom of it.
“A. Number 3. Okay.
“Q. I think the sentence begins with all in capitals, [defendant].
“A. Is that paragraph Number 11?
“Q. Actually it’s the paragraph above that.
“A. It starts off, he said he told me the money was not real. [Defendant] said he was escorted
“Q. Stop. Okay. That’s correct. What I am asking you to look at though is the third complete sentence. Let me show you what I am looking for. That is it right there.
“A. Would you like me to read it?
“Q. Read it to yourself, please.
“A. Okay.
“Q. Does that sentence refresh your recollection as to whether [defendant] actually called the casino about his money?
“A. Yes.
“Q. And does that refresh your recollection as to when he did make that call?
“A. Yes, sir.
“Q. When did [defendant] call the casino about his money?
“A. He said he called the following day.”
Defense counsel did not object to the statement “[H]e said he told me the money was not real” or expressly address it in cross-examining Agent Espinoza.
Outside the jury’s presence, defendant complained to the trial court about counsel’s failure to object. The court replied: “Some of that is trial tactics.... Sometimes the attorney doesn’t want to call attention to things that are done during the course of the trial. To call attention to it would essentially reinforce to the jury that there is something that doesn’t want to get heard. I mean I heard it too and--but I am not exactly sure that that was--I don’t think what came out was actually very harmful because [the prosecutor] stopped him before he got to it.”
In closing argument, the prosecutor said: “So what evidence supports the idea that [defendant] knew these items were fraudulent and intended to defraud the casino? Well, we have what [defendant] told you, his statements. Now he never says once that [‘]I knew these were fraudulent, I intended to defraud.[’] He never said that.” (Italics added.) His incriminating “statements” were the conflicting stories he had told casino security supervisor Tabios and Agent Espinoza about the counterfeit bills, from which the jury could infer guilty knowledge.
At sentencing, defendant requested a Marsden hearing, asserting that defense counsel did not have defendant’s “best interest at heart” because counsel had allowed the prosecutor “to use erroneous evidence against me with malice” and had not filed defendant’s pro se motion for mistrial. The trial court granted the requested hearing.
People v. Marsden (1970) 2 Cal.3d 118.
In the Marsden hearing, defendant repeated his complaint that counsel had not objected when Agent Espinoza testified defendant was aware the money was counterfeit, even though this evidence had been excluded before trial. Defendant also complained that counsel had not objected to Espinoza’s reference to the parole agent.
Actually, as we have noted, defense counsel joined the prosecutor’s motion to strike this reference, though in the Marsden hearing counsel apparently forgot he had done so. Defendant does not renew this point on appeal.
In response, counsel noted that the trial court had granted a defense motion in limine to exclude any reference to the parole agent’s identity, and when a witness mentioned it anyway, the prosecutor stopped him. Counsel did not object or ask for a mistrial for two reasons: He did not want to focus the jury’s attention on the point, and he did not want a mistrial because the ruling excluding defendant’s confession would not be binding on retrial and a renewed motion to exclude the confession might not be granted.
As to the supposed testimony about defendant’s confession, counsel asserted it was not really about that at all. The trial transcript (which counsel had just obtained, though he had requested it long before) showed that the prosecutor was asking about the following statement in Agent Espinoza’s report: “‘[Defendant] said he called the casino the following day and was told they had not determined if the money was real or not.’” However, Agent Espinoza apparently began reading from a different spot, which was rendered even more confusing because the first part of that paragraph was missing. Thus, the statement which Espinoza quoted--“‘He told me the money was not real’”--was probably a paraphrase of what defendant said someone at the casino had told him.
Counsel acknowledged that, at the moment Agent Espinoza gave this testimony, it sounded like an admission by defendant. However, the prosecutor immediately stopped the agent before counsel had a chance to object, and later told the jury that defendant had never said he knew the money was counterfeit.
Counsel believed he could not have filed a new trial motion based on this episode without the trial transcript. In addition, he did not want to have to decide whether to file a new trial motion before the trial court had dealt with his Romero motion, because if that succeeded he would not want to move for a new trial.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
In other words, counsel assessed the likelihood of winning a better result on retrial as far lower than that of winning on the Romero motion before the present judge. As we shall explain, this assessment was reasonable.
The trial court explained to defendant that counsel’s last remarks meant he thought he had a better chance with his Romero motion before this judge than he might before some other judge on retrial, but if he brought the new trial motion first, the Romero motion would become irrelevant. The court then denied defendant’s Marsden motion.
Analysis
To win reversal for ineffective assistance of counsel, a defendant must show that trial counsel performed incompetently and that a better result was reasonably likely absent counsel’s incompetence. (People v. Maury (2003) 30 Cal.4th 342, 389 (Maury).) Furthermore, ineffective assistance cannot be shown on appeal where counsel had a tactical reason for his actions, unless that reason is patently incorrect. (People v. Jones (2003) 29 Cal.4th 1229, 1254.) The failure to object is seldom ineffective assistance of counsel. (Maury, supra, 30 Cal.4th at p. 419.)
As trial counsel explained in part, he had clear tactical reasons for not objecting to Agent Espinoza’s testimony, demanding an admonition of the jury, or moving for mistrial. The prosecutor intervened and redirected the witness’s testimony before counsel could object, even had he wanted to do so; the prosecutor also stated in closing argument that there was no evidence of a confession before the jury. Furthermore, counsel could also reasonably have feared as to this evidence, as he said he did with respect to the “parole” testimony, and as the trial court pointed out to defendant during trial, that an objection would call the jury’s attention to the testimony.
Lastly, defendant was extremely unlikely to have obtained an acquittal or a hung jury on retrial, because the admissible evidence overwhelmingly established his guilt. He brought eight counterfeit bills to a casino. He tendered the second batch for chips when he still had all his chips in front of him (in other words, trying to pass all the bills undetected as quickly as possible). He told conflicting stories about when and how he got the bills. And when interviewed about the crime, he clumsily tried to conceal yet another counterfeit bill and to deny he had it, then claimed to have acquired it unwittingly, like the others. Based on this evidence, defendant’s claim that he was an innocent victim lacked credibility. Counsel sensibly concluded that Romero relief held more promise of minimizing defendant’s punishment than did retrial.
In part IV of the Discussion we conclude, contrary to defendant’s argument, that this evidence was properly admitted.
In his opening brief, defendant asserts as fact that Agent Espinoza’s testimony referred to defendant’s excluded confession, failing to mention the alternative explanation given at the Marsden hearing. Defendant also fails to mention the prosecutor’s immediate and subsequent actions to correct any misimpression the jury might have formed from the testimony. Relying on People v. Neal (2003) 31 Cal.4th 63, 86, defendant asserts that the trial court would have been required to grant a mistrial on defense request because a confession operates as an “‘“evidentiary bombshell which shatters the defense.”’” Neal is distinguishable. There, the jury heard two full taped confessions by the defendant in his own voice. (Id. at pp. 74-77.) Here, the jury heard only a few equivocal words by a testifying officer, from which the prosecutor took immediate steps to divert and redirect the jury’s attention. Even if those measures were not enough by themselves, the prosecutor’s subsequent closing argument, which expressly told the jury there was no confession, should have been sufficient to cure any harm.
In his reply brief defendant dismisses this alternative explanation as speculative and the prosecutor’s actions as insufficient. However, it was defendant’s responsibility to address these points in his opening brief. Because he did not do so, we do not consider his belated arguments in the reply brief. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)
But the bigger problem with defendant’s argument is that he fails to explain how a mistrial would have benefited him. For all the reasons we have already given, the admissible evidence made it extremely unlikely that he would have obtained a more favorable outcome on retrial.
Finally, defendant asserts that trial counsel’s reasoning was “specious” in part because the Miranda violation was so clear that defendant’s confession would never have been admitted on retrial. We need not decide this point because, for the reasons already stated, there is no reasonable probability of a different result on retrial. Therefore, defendant cannot show ineffective assistance of counsel. (Maury, supra, 30 Cal.4th at p. 389.)
II
Defendant also contends: “If the error permitting evidence of the inadmissible confession was such that an admonition to the jury would not have cured the error, the offending testimony must be deemed the product of prosecutorial misconduct rendering [defendant’s] trial fundamentally unfair.” But, as we have already explained, nothing in the record shows that the prosecutor meant to elicit testimony which could have been taken to refer to defendant’s confession. On the contrary, the record makes clear that Agent Espinoza simply misunderstood the prosecutor’s question, which was directed to a different point in the agent’s report. Defendant has failed to show prosecutorial misconduct.
III
Defendant contends that the trial court erroneously admitted lay opinion testimony as to defendant’s state of mind, over objection. We are not persuaded.
The testimony to which defendant refers is the following, given by blackjack dealer Rivard: “Well, it’s unusual for someone to buy another round of chips, if you will put it that way, after you have already purchased it. He did not lose the hand, so he had no reason to purchase other chips. He had plenty of chips to play with. He was only playing a $25 denomination. So out of my own personal experience, it’s not habitual to buy chips again.” According to defendant, the only relevance of this testimony was to show that defendant’s behavior “was somehow suspicious and therefore, criminal.” In other words, defendant construes this testimony as an improper attempt by Rivard to opine on defendant’s state of mind. This contention fails because it was not raised below, and lacks merit in any event.
To begin with, defendant’s contention is forfeited. A claim of error in admitting evidence is forfeited on appeal unless an objection was raised below which was “so stated as to make clear the specific ground of the objection.” (Evid. Code, § 353, subd. (a); People v. Partida (2005) 37 Cal.4th 428, 433-435.) Here, the prosecutor asked: “What was unusual to you based upon your training and experience about the fact that [defendant] asked you for another $400 worth of chips?” Defense counsel said: “Your Honor, I am going to object, relevance and [Evidence Code section] 352 to the extent that the question seeks information about what other people, aside from the defendant, do or do not do.” This objection did not raise the theory that the testimony would be inadmissible lay opinion about defendant’s state of mind. Therefore, it did not preserve that contention for appeal.
In any event, as the context of the testimony shows, defendant’s claim that the testimony was relevant only to his state of mind is mistaken. The testimony was offered to explain why Rivard decided to check the serial numbers of bills in the second batch defendant gave him, although he did not do so with the first batch of bills. Defendant fails to show that the testimony could not properly be admitted for that purpose.
IV
Defendant contends that the trial court violated his due process rights by erroneously admitting evidence of subsequent uncharged acts, over objection--i.e., his possession of a counterfeit $5 bill when interviewed two months after the alleged crime. We disagree.
Defendant moved in limine to exclude this evidence as inadmissible propensity evidence under Evidence Code section 1101, subdivision (a), and as unduly prejudicial under Evidence Code section 352; counsel also requested that if the evidence were admitted the trial court give a limiting instruction. The prosecutor argued that it was admissible under Evidence Code section 1101, subdivision (b) to establish knowledge, intent, and lack of mistake or accident; he joined in the defense request for a limiting instruction. The trial court denied the motion to exclude the evidence, finding it admissible on the grounds stated by the prosecutor and not unduly prejudicial, and agreed to give a limiting instruction.
The trial court instructed the jury as to this evidence (CALCRIM No. 375):
“The People presented evidence that [] defendant committed another offense that was not charged in this case.
“You may consider this evidence only if the People have proved by a preponderance of the evidence that [] defendant in fact committed the offense. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by [a] preponderance of the evidence if you conclude that it’s more likely than not that the fact is true.
“If the People have not met this burden, you must disregard this evidence entirely.
“If you decide that [] defendant committed the offense, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not [] defendant acted with the intent to defraud in this case, or [] defendant knew that the document was false or altered when he allegedly acted in this case, or [] defendant’s alleged actions were the result of mistake or accident.
“Don’t consider this evidence for any other purpose except those limited purposes of showing [] defendant’s intent or knowledge or the absence of mistake or accident by [] defendant.
“If you conclude that [] defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It’s not sufficient by itself to prove that [] defendant is guilty of the charged offense. The People must still prove each element of that charge beyond a reasonable doubt.”
We review the trial court’s decision to admit uncharged acts for abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637.) We conclude the court acted within its discretion to admit this evidence.
Defendant asserts the uncharged act was irrelevant to prove knowledge, intent, or the absence of mistake or accident because it occurred after the charged act. On the contrary: Whether the uncharged act came before or after the charged act is immaterial. (People v. Griffin (1967) 66 Cal.2d 459, 464-465; People v. Ward (1968) 266 Cal.App.2d 241, 255.) Because defendant makes no other argument for the irrelevance of this evidence under Evidence Code section 1101, subdivision (b), and his possession of a counterfeit bill on a later occasion is relevant to whether he knew the bills he possessed at the casino were counterfeit and intended to pass them fraudulently, or was simply the victim of mistake or accident, his challenge fails.
Because the evidence had some tendency in reason to prove a point in dispute (the presence or absence of a guilty state of mind), it was not unduly prejudicial. Evidence is prejudicial under Evidence Code section 352 only if it inflames a jury emotionally against the defendant without regard to the issues. (People v. Crew (2003) 31 Cal.4th 822, 842.)
In any event, the trial court’s limiting instruction, which we presume the jury followed (People v. Adcox (1988) 47 Cal.3d 207, 253)--and which defendant fails to mention--correctly told the jury not to assess this evidence as proof of propensity.
Under all the circumstances, there was no abuse of discretion in admitting the uncharged act evidence.
V
Lastly, defendant contends that the cumulative effect of the errors he has asserted compels reversal. Since we have found no error, we reject this contention.
DISPOSITION
The judgment is affirmed.
We concur: HULL, Acting P. J., ROBIE, J.