Opinion
B164265.
11-19-2003
THE PEOPLE, Plaintiff and Respondent, v. BRADLEY WILLIAM LAWING, Defendant and Appellant.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Jason C. Tran, Deputy Attorneys General, for Plaintiff and Respondent.
Bradley William Lawing appeals from a judgment entered upon his conviction by jury of second degree burglary (Pen. Code, § 459) and petty theft with priors (& sect; 666). Appellant admitted three prior felony convictions within the meaning of sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d), and three prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced appellant to nine years in state prison. Appellant contends that (1) his conviction must be reversed as a result of prosecutorial misconduct, and, if not reversed, (2) the judgment must be amended to award additional presentence conduct credits.
All further statutory references are to the Penal Code unless otherwise indicated.
We modify the judgment to award appellant 110 days of presentence conduct credits, and as so modified, affirm.
FACTS
Between 6:00 and 6:30 p.m., on May 26, 2002, appellant entered the Target store on Firestone Boulevard, in Norwalk, in Los Angeles County. Brandi Beard, a Target assets protection specialist, observed appellant enter and walk directly to the hardware department. She followed and saw him take a display Black & Decker tool, conceal it in the front waistband of his pants and cover it with his sweatshirt. Beard followed appellant who proceeded to the sporting goods section where he took two knives and concealed them in his back pants pockets.
Appellant left the sporting goods department and went towards the front of the store, past 10 open cash registers, exiting the first set of doors which contained the security system. As he did, Beard approached him, identified herself and stated that he needed to return to the store to speak with her about the merchandise under his shirt. Appellant denied doing anything wrong and made a motion that led Beard to believe he was going to try to escape. Two uniformed security personnel assisted Beard, handcuffed appellant and brought him to the booking room where Beard asked him his name. He told her it was George Anderson. Beard telephoned the sheriffs department, and Officer Boucher responded in approximately 20 to 30 minutes. The officer searched appellant and recovered the Black & Decker tool and the two knives. Appellant told Officer Boucher his real name. Beard took photographs of appellant and the merchandise he took, which was then returned to stock. Appellant was arrested and booked, at which time he had no money on him.
There were approximately 200 surveillance cameras in the store, but none in the four or five ceiling domes near the sporting goods department. Target had a "dummy-dome strategy," making it appear that there were cameras in all of the ceiling domes, when there were not. The cameras by the exit and entry doors were functioning but used disks that only stored pictures up to a month, after which it apparently recorded over them. Pictures were removed from the disks and preserved only if there was a confrontation at the front door. In this instance, Target did not remove pictures of appellant from the disk which were therefore recorded over after 30 days, leaving Target with no pictures of appellant entering or exiting the store.
DISCUSSION
I. The prosecutor did not commit prosecutorial misconduct.
While appellant was representing himself, he subpoenaed several tangible items from Target, including video recordings of the charged incident. Target responded to the subpoena by stating that it had no such video recordings.
During closing argument, appellants counsel argued: "Now, as for the intent to permanently deprive the Target store as required to count 2. Well, you know, you dont have any video of this incident. We had, I believe, dummy cameras and dummy camera domes over the area where this incident took place or occurred, the sports department and the hardware department. More importantly, sensors did not go off." "There is no tape that shows where my client was detain [sic]. Despite, as you heard Ms. Beard, there were cameras all over those stores. Working cameras. They were right there. [¶] You know, ladies and gentlemen, its just another important piece of evidence that is missing."
In rebuttal, the prosecution responded: "Now, defense talks about where theres no video. Theres a video all over the door. Well, he has the right to the subpoena powers of the court, if he wanted that video, he could have subpoenaed it into court. [¶] Now, lets think of—" Defense counsel objected: "Your Honor, Im going to object to that. I certainly dont have the burden of proof. [¶] THE COURT: Overruled. [& para;] [DEFENSE COUNSEL]: Thank you." The prosecutor resumed questioning, "Lets think about why he wouldnt subpoena that video into court, if he knows that there is a video and tells you theres a video." Defense counsel then requested a side bar.
At side bar, the discussion continued as follows: "[DEFENSE COUNSEL]: Getting very close to prosecutorial misconduct. Especially, Mr. Lawing, in making this representation, represented himself he subpoenaed all these things. He was told repeatedly by Target these items either did not exist or they taped over them and were not around. [¶] I know counsel just got the file. Now the argument is tending to shift the burden on me and that is unacceptable. [¶] THE COURT: All right. That objection is noted for the record. Im not going to do anything at this time. However, I understand she didnt have the file and you didnt have it all the time, either. [¶] [DEFENSE COUNSEL]: Right. But I was always in the courtroom. [¶] [PROSECUTOR]: . . . Im responding to counsels argument. Counsel, if he is saying that none of these things existed, thats not the argument he made. He had Ms. Beard up there, he could have asked her about the introduction of videos and why they dont exist. He brought out no testimony about these things that either they didnt exist or they were taped over. He didnt bring out that testimony. Now he wants to get in front of the jury and argue why didnt they get a video? I mean, you cant have it both ways. [¶] THE COURT: Okay. What I would like you to do is stay away from anything that talks about the evidence that was requested by this defendant when he was acting as his own attorney. If there were requests for discovery that were made and either were denied or denied because they didnt exist, representations made by Target to the District Attorney, or the investigator, to a D.A., and then communicated to the defendant, well it would be unfair now to talk about that. [¶] [PROSECUTOR]: I didnt open the door. [¶] THE COURT: Well, you still cant, just because its open, you cant walk through it."
After closing arguments, appellant moved for a mistrial because the prosecutor had the case file and should have known when she argued that appellant could have subpoenaed the video tapes that he tried to do so and was told they did not exist. The impact of her argument, he claimed, was to improperly shift the burden of proof to him. The prosecutor argued that the subpoenas were served by appellant long after the 30-day period that the pictures were retained. Knowing this, appellant wanted to go before the jury and make it look like evidence was destroyed. The trial court denied appellants motion, finding that the prosecutors argument did not rise to the level of misconduct so as to justify a mistrial. The jury returned a verdict in 52 minutes, and appellant then admitted his prior convictions.
Appellant contends that the prosecutor committed misconduct mandating reversal of his convictions. He argues that it was error for the prosecutor to assert that appellant should have subpoenaed the surveillance videos if he wanted them because (1) that statement shifted the burden to him, violating established constitutional principles and constituting Griffin error, (2) the prosecutor falsely implied by her statements that appellant had made no attempt to subpoena the video tapes, and (3) the prosecutors statements invited speculation as to possible evidence that was not introduced at trial.
Griffin v. California (1965) 380 U.S. 609, 615 [judge or prosecutors comments on defendants failure to testify is reversible error].
At the outset, respondent meets the claim of prosecutorial misconduct by asserting that it has been waived by appellants failure to assert it and request an admonition in the trial court. We reject this assertion.
Generally, "`"a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety." [Citation.] This general rule, however, does not apply if a defendants objection or request for admonition would have been futile or would not have cured the harm caused by the misconduct; nor does it apply when the trial court promptly overrules an objection and the defendant has no opportunity to request an admonition. [Citation.]" (People v. McDermott (2002) 28 Cal.4th 946, 1001.) Because the purpose of the waiver rule is to accord the trial court the opportunity to correct errors, not to set a trap for the unwary practitioner, an objection is sufficient if it fairly apprises the trial court of the issue it is being asked to rule upon. (People v. Scott (1978) 21 Cal.3d 284, 290.)
Appellant adequately asserted his prosecutorial misconduct objections in the trial court. He referred to the comments of the prosecutor as improperly shifting the burden of proof to him, argued that the prosecutor knew or should have known that subpoenas were served and referred to prosecutorial misconduct, on which the trial court specifically ruled in connection with his motion for a mistrial. A request for an admonition would have been futile, as the trial court overruled appellants objections. Appellant therefore did not waive his prosecutorial misconduct claims, and we turn to their merits.
We review the trial courts ruling regarding prosecutorial misconduct under the abuse of discretion standard (People v. Alvarez (1996) 14 Cal.4th 155, 213) and conclude that the trial court did not abuse its discretion. To support a claim of prosecutorial misconduct, appellant must show either a pattern of egregious conduct or employment of persuasion methods so deceptive as to create a reasonable likelihood that such behavior prejudicially affected the jury. (People v. Ochoa (1998) 19 Cal.4th 353, 427.) To constitute prosecutorial misconduct, the prosecutor must engage in an egregious pattern of conduct infecting the trial with unfairness so as to render it fundamentally unfair, or engage in reprehensible, deceptive conduct. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) Improper prosecutorial conduct includes the prosecutor suggesting the existence of facts outside the record (see People v. Wharton (1991) 53 Cal.3d 522, 567), and going beyond the evidence before the jury (People v. Coddington (2000) 23 Cal.4th 529, 600, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13). But a single instance of technical misstatement by the prosecutor in closing argument does not support a finding of a pattern of egregious behavior warranting reversal. (People v. Frye (1998) 18 Cal.4th 894, 979.)
The prosecutors brief comments here, although not justified and somewhat misleading, did not constitute prosecutorial misconduct. While stating that appellant could have subpoenaed the videos, she failed to state that, under the evidence, he could only have obtained them by subpoena had he done so within 30 days of the incident. Thereafter, the videos, if any, did not exist. Further, she mischaracterized defense counsels argument as stating that a video existed, when, in fact, defense counsel specifically pointed to Beards testimony that a video did not exist. But the prosecutors comments did not pervade the trial and constitute a pattern of behavior. They were isolated to a few brief sentences during closing argument. Also mitigating any prejudice, the comments were in response to appellants argument that an "important piece of evidence [wa]s missing," with its implied misleading suggestion that Target was intentionally responsible for their unavailability, although the evidence was otherwise. (People v. Hill (1967) 66 Cal.2d 536, 560 ["[A] prosecutor is justified in making comments in rebuttal, perhaps otherwise improper, which are fairly responsive to argument of defense counsel and are based on the record"].) Finally, the prosecutors comment that appellant could have obtained the videos by subpoena, although not made with technical precision, was not completely false. The evidence suggested that appellant could have subpoenaed them within 30 days of his arrest, before they were lost.
The prosecutors comments did not constitute Griffin error. (Griffin v. California, supra, 380 U.S. at p. 614, fn. 5.) Cases subsequent to Griffin have held that commenting on the defendants failure to introduce material evidence or anticipated witnesses, commenting on the state of the evidence (People v. Bradford (1997) 15 Cal.4th 1229, 1339) or commenting on a lack of conflicting witnesses, even if the only witness could be the defendant (see People v. Roberts (1975) 51 Cal.App.3d 125, 136-137), do not violate the precepts of Griffin. The prosecutors comments here did not allude to appellants reliance on his constitutional right against self-incrimination, and did not shift the burden of proof to him. She commented on the reason for the absence of evidence, suggesting that the videos were "missing," as defense counsel characterized it, as the result of appellants failure to timely subpoena them. That comment did not allude to, even indirectly, appellants failure to testify, as he was not the only witness who could testify on that point, and the jury had no reason to believe that he was.
Even if the prosecutors comments were improper, they were harmless as there was no reasonable probability that they affected the result. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Garcia (1984) 160 Cal.App.3d 82, 93-94, fn. 12 [prosecutorial misconduct in exposing jury to improper factual matters usually tested under Watson standard].) There was undisputed evidence that appellant was caught "red handed" entering Target, heading directly towards the hardware section and then the sporting goods section, taking merchandise, concealing it under his shirt and proceeding directly past the cash registers through the security doors without paying. Appellants counsel focused his defense on the asserted insufficiency of the evidence that appellant entered Target with the intent to steal, an issue on which the video evidence was of minor relevance, and on which other evidence was compelling. Appellant entered the store with no money, did not browse but went immediately to the sections of the store that had the merchandise he took, concealed the misappropriated items and immediately left the store. This series of events manifested his felonious intention upon entering Target. Further, there was evidence before the jury that any effort by appellant to subpoena the videos after 30 days would have been fruitless, as Beard testified without contradiction that there was no video evidence of appellant because there were no cameras in the area of the store from which he took merchandise, and the video cameras at the entrance to the store did not preserve the videos for more than 30 days. Finally, the jury was instructed in accordance with CALJIC Nos. 1.02 and 1.03 to consider only the evidence presented and that counsels comments were not evidence. We assume they followed these instructions. (See People v. Horton (1995) 11 Cal.4th 1068, 1121.)
II. The trial court erred in failing to give "two-for-four" conduct credits.
The trial court awarded appellant 223 days for time served and 44 days, reflecting 20 percent of the time served, as presentence conduct credits. This award was apparently premised on the conduct credit limitation contained in section 667, subdivision (c)(5), limiting conduct credits to persons convicted under the three strikes law to one-fifth of the total term of imprisonment.
Appellant contends that he should have been awarded "two-for-four" conduct credit pursuant to section 4019, or 110 days. (See People v. Smith (1989) 211 Cal.App.3d 523, 527; People v. Cooper (2002) 27 Cal.4th 38, 40.) He argues that the credit limitations contained in the three strikes law are inapplicable until a defendant is convicted and sentenced and to a defendant who is not convicted of a felony enumerated in section 667.5, subdivision (c).
Respondent agrees with appellant that "[d]efendants sentenced under the Three Strikes Law for felonies not listed in section 667.5, subdivision (c), are entitled to presentence conduct credits under section 4019." We also agree. (See People v. Hill (1995) 37 Cal.App.4th 220, 224-226 [20 percent limit on conduct credits for under three strikes law inapplicable to presentence credits].) Accordingly, the judgment must be modified to reflect that appellant is entitled to 110 days presentence conduct credit and 333 days total credit.
DISPOSITION
The judgment is modified to award appellant 110 days of presentence conduct credit and 333 days total credits, and as so modified, is affirmed. The trial court is directed to amend the abstract of judgment in accordance with this decision.
We concur: P.J. BOREN, ASHMANN-GERST, J.