Opinion
E068808
12-04-2019
THE PEOPLE, Plaintiff and Respondent, v. SIMON PETER GERARD LINARES, Defendant and Appellant.
Cynthia A. Grimm, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1508083) OPINION APPEAL from the Superior Court of Riverside County. Michael B. Donner, Judge. Affirmed with directions. Cynthia A. Grimm, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant and appellant, Simon Peter Gerard Linares, while under the influence of methamphetamine, fled after failing to stop at a stop sign, resulting in a high-speed pursuit with police. Approximately 33 miles and several more moving violations later, defendant struck another car, resulting in the death of one occupant of the other car and seriously injuring another. He was convicted of second degree murder (Pen. Code, § 187, subd. (a)), driving under the influence causing bodily injury (former Veh. Code, § 23153, subd. (e)), and fleeing a police officer and causing serious bodily injury. (Veh. Code, § 2800.3, subd. (a).) He then admitted three serious-felony prior convictions and three prior strikes, receiving an aggregate sentence of 70 years to life. He appealed.
On appeal, defendant contends the court erred in (1) refusing to exclude evidence of the methamphetamine in his blood, obtained without a warrant in violation of the Fourth Amendment, (2) excluding evidence of his out-of-court statements; he also contends, (3) the prosecutor committed various acts of misconduct, (4) defense counsel rendered ineffective assistance by failing to object to prosecutorial misconduct, (5) the cumulative effect of the errors resulted in prejudice. In supplemental briefs, defendant challenges, (6) an unauthorized sentence related to the concurrent imposition of two enhancements for prior serious felony convictions arising from a single case, (7) that his admission of the prior convictions should be set aside because it was the product of ineffective assistance of counsel, and (8) remand is required to permit the trial court to exercise discretion to strike the serious felony prior conviction pursuant to the enactment of Senate Bill No. 1393 (2017-2018 Reg. Sess.).
We affirm the convictions, but reverse the sentence respecting the prior serious felony conviction allegations (Pen. Code, § 667, subd. (a)(1)), remand the matter to allow the trial court to exercise discretion to strike or impose the enhancements pursuant to Senate Bill No. 1393, and direct that the abstract be amended, but in all other respects, we affirm.
II.
FACTS AND PROCEDURAL HISTORY
On December 25, 2015, around 4:30 p.m., a patrol officer observed defendant "blow through a stop sign" while driving a black Nissan pickup truck in Beaumont, California. The officer activated his lights on defendant's truck to effectuate a traffic stop. Although defendant could see the officer's patrol car lights had been activated, after he initially slowed down, but did not pull over or stop. Defendant drove away, at approximately 50 miles per hour on a street where the speed limits were between 30 and 40 miles per hour, running through stop signs and red lights.
Two more Beaumont police officers soon joined the pursuit. Defendant entered the freeway, where he drove at speeds up to 100 miles per hour, passing vehicles in an unsafe manner. Eighteen miles later, defendant exited the freeway in Moreno Valley, followed by two of the three Beaumont officers and a responding California Highway Patrol (CHP) officer. Off the freeway, the police pursued defendant into a residential neighborhood, where he again went through red lights, until he found himself in a dead end cul-de-sac. The two Beaumont officers thought they had cornered defendant, but defendant evaded them by turning his car and driving on the sidewalk, striking an officer's car in the process.
Defendant reentered the freeway, but made a U-turn on the ramp, driving the wrong way, where the CHP officer took over pursuit. As the pursuit continued, defendant sped at and nearly struck another CHP vehicle, again running through more red lights. His speed reached 80 miles per hour as he drove southbound on Frederick Street.
At 4:58 p.m., defendant's truck came to a halt when it broadsided Michelle H.'s Toyota on the passenger side, at the intersection of Alessandro Boulevard and Frederick Streets in Moreno Valley. Michelle H.'s mother, Sybil, was seated in the passenger seat. Sybil died from multiple blunt force injuries, including dislocation of her brain stem from her spinal cord (i.e., internal decapitation), a lacerated aorta and a torn liver. Michelle H. survived the collision but was hospitalized with spinal fractures. The total pursuit comprised 33 miles from beginning to end.
The defendant's vehicle was impounded, where it was searched by police who found a recently used glass methamphetamine pipe along with some methamphetamine crystals. The truck was also inspected for mechanical defects and no defects were found that would have contributed to the cause of the fatal collision.
Defendant was arrested and taken to the hospital, unconscious. He smelled strongly of methamphetamine, so Officer Martin requested that defendant's blood be drawn for forensic testing. The blood sample was determined to have 459 nanograms of methamphetamine per milliliter of blood, a fairly high level. Based on defendant's erratic driving pattern and the amount of methamphetamine in the blood sample, the forensic expert testified at trial that defendant's actions were "consistent with somebody driving under the influence of methamphetamine."
Defendant was charged with second degree murder (Pen. Code, § 187, subd. (a); count 1), driving under the influence and causing bodily injury (former Veh. Code, § 23153, subd. (e); count 2), and evading police and causing serious bodily injury (Veh. Code, § 2800.3, subd. (a); count 3). Respecting count 2, it was further alleged defendant personally inflicted great bodily injury. (Pen. Code, §§ 12002.7 subd. (a), 1192.7 subd. (c)(8).) As to all counts, it was further alleged that defendant had committed three serious felony prior convictions (Pen. Code, § 667, subd. (a)) and three prior strikes (Pen. Code, §§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)). Defendant pleaded not guilty and waived jury trial on the priors. After hearing the evidence, the jury convicted defendant on all counts and found that defendant had personally inflicted great bodily injury as alleged in count 2.
Thereafter, defendant admitted three serious-felony prior convictions (Pen. Code, § 667, subd. (a)) and three prior strikes (Pen. Code, §§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)). The trial court denied defendant's Romero motion and sentenced defendant to 70 years to life, consisting of 45 years to life for the murder conviction in count 1, plus a consecutive term of 25 years to life for the drunk driving causing injury conviction, in count 2. As to the conviction for evading police causing injury, the court imposed but stayed a term of 25 years to life pursuant to Penal Code section 654, along with the three-year term for the great bodily injury enhancement.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Regarding the prior convictions, the court ordered concurrent five-year terms for both of the two enhancements for prior serious felony convictions pursuant to Penal Code section 667, subdivision (a)(1), and at the prosecution's request, dismissed one strike allegation. Defendant timely appealed.
III.
DISCUSSION
A. The Trial Court Properly Denied Defendant's Motion to Suppress the Blood Draw Evidence.
1. Background
At trial, defendant made a motion in limine to suppress the blood draw evidence on the ground it violated the Fourth Amendment as a warrantless search, pursuant to Missouri v. McNeely (2013) 569 U.S. 141. During an Evidence Code section 402 hearing, Officer Martin, who ordered the draw, testified that in the hospital, defendant was intubated and unconscious, so, on the authority of Vehicle Code section 23612, subdivision (a)(5), he directed the drawing of defendant's blood to test for drugs or alcohol. The trial court tentatively ruled that due to defendant's uncertain medical state, exigent circumstances warranted the warrantless blood draw. The court also tentatively ruled that the defendant's condition justified the officer's reliance on Vehicle Code section 23612, subdivision (a)(5), which expressly covered the situation. The court tentatively denied the motion.
Later, the court revisited the issue, because it realized that the blood draw occurred after the decision in Missouri v. McNeely, supra, 569 U.S. 141 and because there is a procedure in Riverside County for expeditious telephonic warrants for blood draws, causing the court to be concerned about reliance on statute authorizing warrantless blood draws in conflict with McNeely. After further argument, the court assumed the blood draw was unconstitutional pursuant to McNeely and People v. Harris (2015) 234 Cal.App.4th 671, because no warrant was obtained and there were no exigent circumstances rendering it unfeasible for officers to obtain a warrant and because defendant did not actually consent.
However, relying on Herring v. United States (2009) 555 U.S. 135, 140, holding that exclusion is not a necessary consequence of a Fourth Amendment violation where it will not result in appreciable deterrence, the court ruled that exclusion was not required because the officer relied on a facially valid statute (Veh. Code, § 23612, subd. (a)(5)), which clearly and unambiguously permitted the blood draw. The motion was denied.
On appeal, defendant contends the evidence of the chemical analysis of the blood draw should have been suppressed because it was obtained without a warrant, in the absence of exigent circumstances, and the officer could not rely in good faith on the implied consent statute. We disagree.
2. Discussion
"The standard of review . . . of a trial court's ruling on a motion to suppress is well-established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence," and we review the legal conclusions de novo, exercising our independent judgment. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
Under the Fourth Amendment to the United States Constitution, . . . warrantless [searches are] per se unreasonable unless the People prove that the search comes within a recognized exception to the warrant requirement." (People v. Meza (2018) 23 Cal.App.5th 604, 609-610.) The taking of a blood sample or the administration of a breath test, constitutes a search. (Birchfield v. North Dakota (2016) ___ U.S. ___ [136 S.Ct. 2160, 2173].)
Three exceptions to the warrant requirement are usually applicable in a case involving driving under the influence of alcohol or drugs (DUI): exigent circumstances, consent, and search incident to arrest. (People v. Gutierrez (2018) 27 Cal.App.5th 1155, 1159-1160.) As to the first exception, the court agreed the blood draw was unconstitutional under McNeely, and that there were no exigent circumstances. With respect to the second exception, the court concluded there was no express consent. Regarding the third exception, the court did not expressly rule, although it has been held that while a breath test may be conducted without a warrant as incident to a lawful arrest, a warrantless blood test may not be justified as a search incident to arrest because of its intrusive nature. (Birchfield v. North Dakota, supra, ___ U.S. ___ [136 S.Ct. 2160, 2184-2185].)
That ruling would have been different if the court had the benefit of the very recent United States Supreme Court decision on this precise question, where it held that when a driver is unconscious, the general rule is that exigent circumstances almost always permits a blood test without a warrant. (Mitchell v. Wisconsin (2019)___U.S. ___ [139 S.Ct. 2525, 2529].) The court reasoned that notwithstanding technology and the expedited procedure for warrants, "exigency exists when (1) blood alcohol concentration evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Both conditions are met when a drunk-driving suspect is unconscious. . . ." (Id., at pp. 20-21, 23-24.) Because we affirm on different grounds, we do not need to reach this question.
Because none of the exceptions to the warrant requirement were present, the trial court agreed that the search violated the Fourth Amendment but did not end its inquiry there. Instead, it concluded that despite the unconstitutional nature of the blood draw, exclusion was not required. We therefore focus on whether exclusion was required by the failure to obtain a warrant.
The exclusionary rule encompasses the primary evidence obtained as a direct result of an illegal search or seizure and "'fruit of the poisonous tree.'" (Segura v. United States (1984) 468 U.S. 796, 804.) But "[t]he exclusionary rule generates 'substantial social costs,' [citation] which [may] include setting the guilty free and the dangerous at large." (Hudson v. Michigan (2006) 547 U.S. 586, citing United States v. Leon (1984) 468 U.S. 897, 907.)
For this reason, "the Court has also held that, even when there is a Fourth Amendment violation, [the] exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits." (Utah v. Strieff (2016) ___ U.S. ___ [136 S.Ct. 2056, 2059].) Courts have thus attempted to strike a balance between two competing considerations: rejecting the "'reflexive'" impulse to exclude evidence every time an officer runs afoul of the Fourth Amendment (Davis v. United States (2011) 564 U.S. 229, 238), but insisting on suppression when it will lead to "'"appreciable deterrence"'" of police misconduct. (Herring v. United States, supra, 555 U.S. at p. 141.)
In Herring v. United States, supra, 555 U.S. 135 the United States Supreme Court concluded the benefits of deterrence must outweigh the costs. (Id. at p. 141; United States v. Leon, supra, 468 U.S. at p. 910.) It noted that the principles of Leon, involving police acting under a warrant that was invalid, had been extended to warrantless administrative searches performed in good faith reliance on a statute later declared unconstitutional, as well to situations where the police reasonably relied on mistaken information in a court's database that an arrest warrant was outstanding. (Herring v. United States, supra, 555 U.S. at p.142; Illinois v. Krull (1987) 480 U.S. 340, 349-350.)
The Court went on to say that "the extent to which the exclusionary rule is justified by these deterrence principles varies with the culpability of the law enforcement conduct." (Herring v. United States, supra, 555 U.S. at p. 143.) Relying upon Illinois v. Krull, supra, 480 U.S. 340, the Court stated that "'evidence should be suppressed "only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment."'" (Herring v. United States, supra, at p. 143.)
Applying these principles to the instant case, while the search was unconstitutional by virtue of McNeely for want of a warrant, there are distinguishing features in that case, which involved a conscious defendant who expressly refused to submit to a blood test, but was forced to do so by the police. There, the Court limited its holding to the issue of whether, in a routine drunk driving case, the "natural metabolization of alcohol in the bloodstream presents a per se exigency [justifying] an exception to the Fourth Amendment's warrant requirement." (Missouri v. McNeely, supra, 569 U.S. at pp. 145, 165.) However, in emphasizing the need for a case-by-case analysis of the totality of the circumstances (id. at p. 156), the Court acknowledged that in a case that is not a "'routine DWI case,'" other "'"special facts,"'" such as the need for police to attend to a car accident, affect whether the police can obtain a warrant in an expeditious way. ( Id. at p. 164.)
We found such "special facts" in People v. Toure (2015) 232 Cal.App. 4th 1096, 1104-1105, where the delay occasioned in subduing the combative defendant, and transporting him to the station after a brief investigation of an injury accident, prevented the officers from calculating backwards to determine when defendant had his last drink and what his blood alcohol level was at the time of the collision. (Id. at p. 1104.) Since that time, expedited procedures have been adopted for obtaining telephonic warrants under similar circumstances, which factored into the trial court's analysis in the present case.
This case involved a fatal motor vehicle accident in which the defendant was unconscious, and in the hospital, already intubated, at the time the blood draw was ordered. The trial court acknowledged the expedited procedures for obtaining a warrant to conduct the blood draw, so it declined to find exigent circumstances justified the search.
Instead, the court focused on Vehicle Code section 23612, which provides that any person who drives a motor vehicle is deemed to have given consent to chemical testing of his or her blood or breath or urine to determine the alcohol or drug content of his or her blood, if lawfully arrested for driving under the influence. (Veh. Code, § 23612, subd. (a)(1)(A), (B).) This statute is generally referred to as the "implied consent" law. (See People v. Gutierrez, supra, 27 Cal.App.5th 1155, 1158; see also, People v. Balov (2018) 23 Cal.App.5th 696, 701-702.) Subdivision (a)(5) of Vehicle Code section 23612, provides that where a person is unconscious or otherwise incapable of refusing to submit to a chemical test is deemed not to have withdrawn his or her consent.
Another statute, Vehicle Code section 13384, provides that the department shall not issue or renew a driver's license to any person unless the person consents in writing to submit to a chemical test or test of that person's blood, breath, or urine pursuant to Vehicle Code section 23612 when requested to do so by a peace officer. This enactment, in effect since 1999, has been described as bringing a case closer to a probation condition or advance express consent context, but it was not offered into evidence or argued in the present case. (See People v. Mason (2016) 8 Cal.App.5th Supp. 11, 26-27.)
While the trial court rejected the exception pertaining to exigent circumstances, it considered the implied consent statute as it related to the calculus of the reasonableness of the officer's conduct, relying in good faith on the statute in ordering the blood sample, even where implied consent is not a sufficient basis to dispense with a warrant. We appreciate the evanescence of our decision in light of the pendency of Arredondo, where the reviewing court held the exclusionary rule was inapplicable under the "'good faith'" exception. (Id. formerly at 245 Cal.App.5th at p. 210.) However, we also conclude that the officer's reliance on the statute was reasonable under the totality of the circumstances.
This precise question is currently pending in the California Supreme in People v. Arredondo formerly at 245 Cal.App.4th 186 (rev. granted June 8, 2016, S233582), a case with facts remarkably similar to this case.
As the trial court pointed out, no California or federal case has held that Vehicle Code section 23612, subdivision (a)(5), is unconstitutional. It is thus facially valid until a higher court rules to the contrary. In the absence of binding precedent so holding, it is not unreasonable for a law enforcement officer to rely on such a facially valid statute. The trial court concluded an officer would not have appreciated that Vehicle Code section 23612, subdivision (a)(5) was unconstitutional in December 2015, so application of the exclusionary rule would serve no deterrent effect. For this reason, application of the exclusionary rule was not required under Herring.
Further, given the results of the car search (not challenged by way of a suppression motion), which yielded a pipe for smoking methamphetamine and methamphetamine crystals, combined with the officer's observation of the odors of alcohol and a chemical smell on defendant, any error would have been harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
B. The Trial Court Properly Excluded Defendant's Self-Serving Hearsay Statements.
1. Background
In defendants trial brief, he initially argued that his post-Miranda admissions should be excluded because he lacked capacity to waive his rights. Specifically, defendant argued that he admitted to law enforcement that he had taken methamphetamine, but that he went on to make several nonsensical statements showing he was "encumbered by a combination of drugs and mental condition" which would have precluded a finding his waiver of Miranda rights was voluntary.
Ref. Miranda v. Arizona (1966) 384 U.S. 436.
His alleged statements included the following: he was employed by the Federal Bureau of Investigation (FBI), the pursuit prior to the collision was a test arranged by the FBI; his code name was Barlius; his birth name was classified; people were trying to kill him; he was an apostle of Jesus Christ; his FBI assignment was to save the world; he had special powers to erase minds; the collision occurred because he was trying to defuse Satan; he had "red hulk" powers, which were an FBI weapon; the medicine he took, methamphetamine, gave him the "red hulk" power. The record does not contain a transcript of the interview and does not indicate when the defendant made these statements.
However, during the hearing on motions in limine, defendant changed course, and argued instead his statements were admissible to show his state of mind. The trial court indicated that he could not offer the statements as exculpatory evidence unless he testified. Defendant made no offer of proof, offered no authority supporting the admission of the statements, and did not testify at trial.
On appeal, defendant argues that the trial court erred in excluding the evidence. We disagree.
2. Analysis
Defendant argues on appeal that the statements were not offered for the truth of the matter, but, instead, for the nonhearsay purpose of showing his state of mind. Statements offered for this nonhearsay purpose "'do not directly declare a mental or emotional state, but are merely circumstantial evidence of it,' which are 'outside the hearsay rule.'" (People v. Clark (2016) 63 Cal.4th 522, 591.) Nonhearsay state of mind evidence is admissible where the statements tend to prove state of mind circumstantially. (Id. at pp. 590-591.)
However, such statements are generally relevant only to show the declarant's state of mind at the time the statements are made. The statements at issue here, made during the police interview, were not relevant to any issue in the case, once the People decided not to use those statements. Therefore, while defendant argues the statements were not offered for the truth of the matter, they are irrelevant for any nonhearsay purpose. We must therefore examine the admissibility of the statements as possible exceptions to the hearsay rule.
Hearsay evidence is evidence of a statement made other than by a witness while testifying at the hearing that is offered to prove the truth of the matter stated. (Evid. Code, § 1200, subd. (a).) Hearsay evidence is inadmissible, except as provided by law. (Evid. Code, § 1200, subd. (b); People v. Grimes (2016) 1 Cal.5th 698, 710-711.) "'We review [a claim] regarding a trial court's ruling on the admissibility of evidence for abuse of discretion.'" (People v. Henriquez (2017) 4 Cal.5th 1, 31, citing People v. Goldsmith (2014) 59 Cal.4th 258, 266.)
One exception to the rule of inadmissibility relates to statements of a declarant's then existing mental or physical state. (Evid. Code, § 1250.) That section provides that subject to Evidence Code section 1252, evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible when (1) the evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action, or (2) the evidence is offered to prove or explain acts or conduct of the declarant. However, "This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed." (Evid. Code, § 1250, subd. (b).)
To be admissible under Evidence Code section 1250, the statement must be trustworthy: "[T]his exception to the hearsay rule is inapplicable 'if the statement was made under circumstances such as to indicate its lack of trustworthiness.' (Evid. Code, § 1252.)" (People v. Ervine (2009) 47 Cal.4th 745, 778.) The statements proffered by defendant were inherently untrustworthy, especially where even defendant himself referred to them as "nonsensical" in both his trial brief and on appeal, so he did not establish that the statements were trustworthy. Further, the statements did not qualify as party admissions, because to be admissible on that basis, the hearsay statement must be introduced against the defendant. (Evid. Code, § 1220; People v. Gurule (2002) 28 Cal.4th 557, 605.)
Instead, the proffer of the statements was an attempt to introduce hearsay information suggesting he was delusional before the jury, without having to take the stand, in an attempt to preclude a finding of malice. It is well settled a defendant in a criminal case may not introduce hearsay evidence for the purpose of testifying while avoiding cross-examination. (People v. Edwards (1991) 54 Cal.3d 787, 820.) A defendant "'has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts.'" (Brown v. United States (1958) 356 U.S. 148, 155-156, citing Fitzpatrick v United States (1900) 178 U.S. 304, 315.)
Having no right to present the evidence, defendant has not established a violation of his right to a fair trial, either. The "'routine application of state evidentiary law does not implicate [a] defendant's constitutional rights.'" (People v. Hovarter (2008) 44 Cal.4th 983, 1010, quoting People v. Brown (2003) 31 Cal.4th 518, 545.)
The court did not abuse its discretion in excluding the self-serving hearsay.
C. There was No Prosecutorial Misconduct and No Ineffective Assistance of Counsel in Failing to Object to Conduct by the Prosecutor.
Defendant argues he was prejudiced at trial by several instances of prosecutorial misconduct, including (a) telling the jury during argument that defendant longer "had the presumption of innocence," (b) commenting on defendant's reliance on his Fifth Amendment right to not testify, (c) erroneously telling the jury it could use the flight instruction to find defendant guilty on the murder charge, (d) using a hypothetical during voir dire to secure jurors' commitment to return a verdict of guilty where malice is implied, and (e) appealing to the jurors' sympathies. Having failed to object to each instance, he claims trial counsel was ineffective for failing to object to the misconduct to avoid forfeiture. We find (a) no misconduct, and (b) no ineffective assistance of counsel.
Under California law, to establish reversible prosecutorial misconduct a defendant must show that the prosecutor used "'deceptive or reprehensible methods'" and that it is reasonably probable that, without such misconduct, an outcome more favorable to the defendant would have resulted. (People v. Riggs (2008) 44 Cal.4th 248, 298.) A prosecutor's misconduct violates the federal Constitution if the behavior is "'"'"'"so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process."'"'"'" (People v. Redd (2010) 48 Cal.4th 691, 733.) Under state law, a prosecutor who uses deceptive or reprehensible methods commits misconduct even when those actions do not result in a fundamentally unfair trial. (People v. Friend (2009) 47 Cal.4th 1, 29.)
To preserve a claim of prosecutorial misconduct for appeal, a defendant must object and request an admonition. (E.g., People v. Redd, supra, 48 Cal.4th at p. 734; People v. Hill (1998) 17 Cal.4th 800, 820.) The failure to object will only be excused if an objection would have been futile (People v. Jackson (2016) 1 Cal.5th 269, 349), or if an admonition would not have mitigated the harm caused by the misconduct. (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 853.) When the claim focuses on the prosecutor's comments to the jury, we determine whether there was a reasonable likelihood that the jury construed or applied any of the remarks in an objectionable fashion. (People v. Friend, supra, 47 Cal.4th at p. 29.)
Here, defendant failed to object, thereby forfeiting the claims of misconduct. (People v. Forrest (2017) 7 Cal.App.5th 1074, 1081.) To avoid this consequence, he claims his counsel was ineffective for failing to object to each claim of misconduct, requiring us to examine the merits of each instance in order to evaluate whether the failure to object constituted deficient performance that prejudiced defendant. (See, Strickland v. Washington (1984) 466 U.S. 668, 687.)
"In determining whether counsel's performance was deficient, we exercise deferential scrutiny." (People v. Montoya (2007) 149 Cal.App.4th 1139, 1147.) Where "'"the record . . . sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim on appeal must be rejected.'" (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267, citing People v. Wilson (1992) 3 Cal.4th 926, 936.)
In addition, prejudice must be affirmatively proved, and if the defendant fails to show prejudice, the reviewing court may reject the claim without determining whether counsel's performance was deficient. (People v. Mendoza (2000) 24 Cal.4th 130, 164; People v. Kipp (1998) 18 Cal.4th 349, 366, 368; see also People v. Carrasco (2014) 59 Cal.4th 924, 982.)
In the present case, the record sheds no light on why counsel acted or failed to act in the manner challenged, and defendant has not demonstrated that there simply could be no satisfactory explanation. Additionally, none of the asserted instances constitutes prosecutorial misconduct, obviating the need for objection, as we will explain.
D. Telling the Jury Defendant No Longer Had the Presumption of Innocence.
Defendant's closing argument emphasized the presumption of innocence as to each crime and each element, and that the People had not rebutted the presumption. In rebuttal, the prosecutor argued, without objection, that the presumption applied through the trial, but that "[h]e doesn't have it anymore. The case has been proven to you." The prosecutor went on to say, "You have sat through the evidence. You have seen the video. You can now go to the deliberation room and say, Yeah, we gave him a fair shot on the first day of trial. We listened. We gave him [a] fair shot the second day, the fourth and the fifth. But now we sit in our deliberation room, and he's not innocent. He doesn't get that presumption. It's okay for me to spit out those words, 'Guilty,' and it's as simple as that. He no longer carries that presumption, not once the evidence has been proven to you." Defendant argues the statements misstated the law and "eviscerated" the burden of proof. We disagree.
"A defendant is presumed innocent until proven guilty, and the government has the burden to prove guilty, beyond a reasonable doubt, as to each element of each charged offense." (People v. Booker (2011) 51 Cal.4th 141, 185.) "'Once an otherwise properly instructed jury is told that the presumption of innocence obtains until guilt is proven, it is obvious that the jury cannot find the defendant guilty until [it], as the fact-finding body, concludes guilt was proven beyond a reasonable doubt.'" (People v. Booker, supra, at p. 185, citing People v. Goldberg (1984) 161 Cal.App.3d 170, 189-190.)
"When the [misconduct] claim focuses on the prosecutor's comments to the jury, we determine whether there was a reasonable likelihood that the jury construed or applied any of the remarks in an objectionable fashion." (People v. Booker, supra, 51 Cal.4th at p. 184-185, citing People v. Friend, supra, 47 Cal.4th at p. 29.) In Booker, the court rejected a similar claim of misconduct based on an argument that closely resembled the rebuttal delivered by the prosecutor here, and counsel objected. The court then gave further instruction, whereupon the prosecutor argued that once the evidence convinced the jury he was no longer innocent, the presumption vanished. In that case, the court held the prosecutor had simply argued the jury should return a verdict of guilty based on the state of the evidence presented. (People v. Booker, supra, at p. 185.)
Defendant's reliance on People v. Dowdell (2014) 227 Cal.App.4th 1388, is misplaced. In Dowdell, the prosecutor implied that the presumption of innocence did not continue into deliberations, whereas in this case the prosecutor stated that once the People had proven guilt, the presumption no longer applied. This was simply a comment on the state of the evidence. There was no prosecutorial misconduct.
Even if there had been misconduct, there is nothing in the record demonstrating that an objection would have been futile, or that the prosecutor's argument was so extreme or pervasive that a prompt objection and admonition would not have cured the harm. We cannot speculate, as defendant suggests, that the jury may have used the prosecutor's statements to believe defendant was no longer presumed innocent, because the court correctly instructed it to the contrary. Jurors are presumed to have understood and followed the court's instructions. (People v. Dalton (2019) 7 Cal.5th 166, 236.)
Because the jury was correctly instructed, and the comments were not pervasive, defendant has failed to demonstrate that a different result would have occurred if counsel had timely objected. Absent a showing that the challenged actions of counsel were prejudicial, we may reject the claim without determining whether counsel's performance was deficient. (Strickland, supra, 466 U.S. at p. 697; People v. Mendoza, supra, 24 Cal.4th at p. 164; People v. Kipp, supra, 18 Cal.4th at pp. 366, 368.)
E. Commenting on Defendant's Silence.
Defendant argues that the prosecutor committed Griffin error (ref., Griffin v. California (1965) 380 U.S. 609, 615) during rebuttal by stating that the "[d]efense didn't suggest any evidence . . . was lacking or missing," and that there was "absolutely no evidence whatsoever that the defendant's mind was anything other than what it was that day, knowing he was committing dangerous acts, and, plain and simple, just not caring." He also argues that the prosecutor improperly argued that there was no evidence the defendant has having certain difficulties during the pursuit. We disagree.
It is well settled "[u]nder Griffin v. California, supra, 380 U.S. 609 [that] a prosecutor's comment on a defendant's decision not to testify violates the constitutional right to silence (People v. Bryant (2014) 60 Cal.4th 335, 387), or to state that certain evidence is uncontradicted or unrefuted by anyone other than the defendant testifying on his or her own behalf. (People v. Hughes (2002) 27 Cal.4th 287, 372.) "'It is [also] well established, however, that the rule prohibiting comment on defendant's failure to testify "does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses."'" (People v. Font (1995) 35 Cal.App.4th 50, 57; see also, People v. Hughes, supra, at p. 372.)
Faced with a claim of Griffin error, our task is to determine whether there is a reasonable likelihood that the jury understood the prosecutor's statements as a comment on the failure to testify. (People v. Hughes, supra, 27 Cal.4th at p. 375.) In this regard, we note the jury was properly instructed not to consider the fact defendant did not testify for any reason at all (CALCRIM No. 355), and we presume the jury followed this admonition. (People v. Dalton, supra, 7 Cal.5th at p. 238; People v. Romero and Self (2015) 62 Cal.4th 1, 28.)
The prosecutor's rebuttal was proper. Defendant fails to mention that his own closing argument focused on the critical element of the defendant's subjective knowledge or awareness he was endangering the lives of human beings, by deliberately and consciously disregarding human life. The prosecutor simply responded to that argument in making the challenged comments. The prosecutor did not point to evidence that only defendant's testimony could contradict, but rather indicated that the dangerous acts were committed with disregard for human life.
Defendant has failed to show that the properly instructed jury construed the remark as a comment on the defendant's failure to testify. There was no Griffin error, and therefore no reason for competent counsel to object.
F. Flight Instruction Error
The trial court instructed the jury it could consider defendant's flight as consciousness of guilt, pursuant to CALCRIM No. 372, with no objection by the defendant. Defendant claims that during closing argument, the prosecutor misstated the law by telling the jury the flight instruction applied to the murder charge by telling the jury defendant's actions in fleeing showed consciousness of guilt as to the murder charge. We disagree.
"'[A] flight instruction "is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt."'" (People v. Leon (2015) 61 Cal.4th 569, 607.) Flight requires a purpose to avoid being observed or arrested. (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) Defendant does not contend that there was no factual basis for the instruction, to which he did not object. As such, it may be considered by the jury as evidence of consciousness of guilt. (Ibid.)
Nor does defendant claim the prosecutor misstated the law as to the flight instruction. Nowhere in defendant's argument does he point to an actual misstatement of the law by the prosecutor vis-à-vis the flight instruction. Instead, defendant claims the prosecutor argued that the flight instruction applied to the murder charge on the assumed theory that defendant fled to avoid arrest for causing the collision. The record belies this assertion.
Defendant incorrectly attributes to the prosecutor an argument that "[b]y highlighting Linares' flight before the collision and arguing that conduct showed he 'knew he was guilty' of the murder charge, and the 'more he fled, the more guilty he became,' the prosecutor committed misconduct." The selective use of quotation marks makes it appear that the prosecutor argued consciousness of guilt for the murder, but the record reveals the prosecutor did not do so or did no such thing.
First, the prosecutor did not argue that defendant fled the scene of the fatal collision or that the flight instruction related to the murder charge. Instead, the prosecutor argued that defendant's conduct in evading police after committing a traffic infraction, driving at high rates of speed, over many miles, while committing numerous additional moving violations, with the knowledge that this conduct was dangerous driving behavior, showed consciousness of guilt. The evidence supported this argument where defendant's evasion of police, to avoid arrest for the initial violation, led to the fatal collision. This was proper argument: "Malice may be implied when a defendant, fleeing from police in a high speed chase, causes a fatal collision." (People v. Hammond (1992) 9 Cal.App.4th 1523, 1532, citing People v. Fuller (1978) 86 Cal.App.3d 618, 628.)
The prosecutor's argument was proper. There was no misconduct, and no reason for competent defense counsel to object.
G. Use of Hypotheticals During Voir Dire and Argument.
During voir dire, the prosecutor posed a hypothetical, relating to a scenario involving two 20-year-old men throwing bricks from a bridge into freeway traffic, resulting in a driver's death. The purpose of the hypothetical was to determine whether prospective jurors understood the notion that where a person deliberately does something, knowing it is dangerous, he or she can be guilty of murder even though he or she did not intend to kill. Defendant did not object to the hypothetical during voir dire. Later, during closing argument, the prosecutor referred to that hypothetical without objection, reminding the jurors they had agreed they could convict a person who threw bricks from a bridge of murder, and comparing that conduct with defendant's actions.
On appeal, defendant claims the prosecutor improperly used a hypothetical to condition or indoctrinate the jury during voir dire, for which defense counsel should have objected, and that the error was compounded during reference to the same hypothetical during summation. We disagree.
It is well settled that the examination of prospective jurors should not be used "'"to educate the jury panel to the particular facts of the case, to compel the jurors to commit themselves to vote a particular way, to prejudice the jury for or against a particular party, to argue the case, to indoctrinate the jury, or to instruct the jury in matters of law."'" (People v. Fierro (1991) 1 Cal.4th 173, 209, quoting People v. Williams (1981) 29 Cal.3d 392, 408.) The hypothetical used by the prosecutor during voir dire did none of these things, and defendant's failure to object resulted in forfeiture of any claimed error. (Fierro, supra, 1 Cal.4th at p. 209; see also, People v. Gurule, supra, 28 Cal.4th at p. 657.) Instead, it was used to evaluate the prospective jurors' willingness and ability to follow the law.
"[D]efendant had ample opportunity to correct, clarify, or amplify the prosecutor's [initial] remarks through his own voir dire questions and comments." (People v. Woodruff (2018) 5 Cal.5th 697, 756, citing People v. Thomas (2012) 53 Cal.4th 771, 797.) The questions about the hypotheticals did not commit the jurors to vote in any particular way, or attempt to educate the jury on the particular facts of the case, or compel them to vote in a particular way; they were designed to ensure the jurors would properly perform their duty. The use of the hypothetical during voir dire was proper.
As for the prosecutor's reference to the hypothetical during closing argument, we again find no error. "'"To prevail on a claim of prosecutorial misconduct based on [argument] to the jury, the defendant must show a reasonable likelihood the jury understood or applied the . . . comments in an improper or erroneous manner."'" (People v. Shazier (2014) 60 Cal.4th 109, 144.) Defendant has made no such showing. This was not a situation in which the prosecutor quoted responses given by jurors on voir dire during argument. (See People v. Freeman (1994) 8 Cal.4th 450, 517.) Instead, the prosecutor used the hypothetical to elucidate the concept of implied malice.
There was no misconduct, so counsel's performance was not deficient in failing to object.
H. Appealing to Jurors' Sympathies
During comments to the jury, the prosecutor argued, without objection, about how the deceased victim's family felt, and urged the jury to give them justice, and to hold the defendant accountable. Specifically, the prosecutor noted that the Christmas holidays would never be the same for the family of the decedent, emphasizing their sorrow. Defendant now argues this was misconduct requiring reversal and that counsel provided deficient performance by failing to object to the argument. We disagree.
As a general rule, it is misconduct for a prosecutor to invite the jury to view the case through the victim's eyes, or to imagine the victim's thoughts during the last seconds of life, or to consider the suffering of the victim, because to do so appeals to the jury's sympathy for the victim. (People v. Leon, supra, 61 Cal.4th at p. 606; People v. Leonard (2007) 40 Cal.4th 1370, 1406-1407; People v. Stansbury (1993) 4 Cal.4th 1017, 1057.)
"[A]n appeal for sympathy for the victim is out of place during an objective determination of guilt." (People v. Stansbury, supra, 4 Cal.4th at p. 1057.) When "the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
To determine if the comments were improper appeals to emotions, we must consider them in context, and the references to the sad holiday season constituted fair comment on the evidence (the fatal collision occurred on Christmas day) and did not suggest that emotion may reign over reason or invite an irrational, purely subjective, response. (See People v. Seumanu (2015) 61 Cal.4th 1293, 1342-1343 [prosecutor's argument describing the victim as a bridegroom focused on preparing for his wedding the next day when robbed, kidnapped and murdered deemed proper].) Interestingly, defense counsel himself invited the jury to "step into the shoes of Simon and see through the splinters of his mind's eye." There was no misconduct.
Defendant relies on decisions involving the guilt phase of a capital trial in arguing that it was improper for the prosecutor to urge the jury to consider the impact of the crime on the victim's family. In capital cases, such arguments are improper at the guilt phase, but are entirely permissible at the penalty phase. (People v. Jackson (2009) 45 Cal.4th 662, 691-692.) At that point, a jury "properly may consider the impact of the crime on the victim's family." (Id. at p. 692, citing People v. Zamudio (2008) 43 Cal.4th 327, 364.) Defendant has cited no non-capital cases holding that it is improper for the prosecutor to tell the jury it may consider the impact of the crime on the victim's family.
We turn to the prosecutor's other comments, in which the prosecutor urged the jury to do justice for the victims and hold the defendant accountable. Some courts have criticized prosecutorial argument urging the jury to "'send a message to the community,'" or to convict the defendant in order to protect community values, preserve civil order, deter future law breaking. (United States v. Lawrence (6th Cir. 2013) 735 F.3d 385, 432-433.) However, other courts have held that a prosecutor's argument that the jury should restore justice to the streets, because that street on that day was without justice, was not misconduct. (People v. Adanandus (2007) 157 Cal.App.4th 496, 511-512.)
Similarly, a prosecutorial argument that the jury should "'make a statement,'" and do "'the right thing'" and to "restore 'confidence' in the criminal justice system," has been deemed to be proper. (See People v. Wash (1993) 6 Cal.4th 215, 261-261.) It has also been held that exhorting the jury to do justice for the victim would not likely have influenced the jury's determination. (See People v. Medina (1995) 11 Cal.4th 694, 777-778.) Here, there was no reasonable probability that a result more favorable to the defendant would have been reached if counsel had objected and the court had admonished the jury. (People v. Pensinger (1991) 52 Cal.3d 1210, 1250.)
Given the overwhelming evidence of defendant's guilt, there is no reasonable probability that the argument affected the guilty verdicts. (People v. Pearson (2013) 56 Cal.4th 393, 441-442; People v. Stansbury, supra, 4 Cal.4th at p. 1057.) Based on the lack of prejudice, any claim of ineffective assistance of counsel for failing to object to the remarks must fail. (People v. Amezcua and Flores (2019) 6 Cal.5th 886, 920.)
I. Reversal is Not Required Where There is no Cumulative Error.
Defendant argues that the cumulative impact of the errors was prejudicial. We disagree.
It is true that "'[a] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.'" (People v. Cunningham (2001) 25 Cal.4th 926, 1009, citing People v. Hill, supra, 17 Cal.4th at p. 844.) However, we have found no errors affecting the guilty verdicts. There was no series of trial errors resulting in prejudice to defendant, requiring reversal of the convictions.
"Defendant was entitled to a fair trial, but not a perfect one." (People v. Cunningham, supra, 25 Cal.4th at pp. 926, 1009, and cases cited; see also, People v. Jasso (2012) 211 Cal.App.4th 1354, 1378.) Defendant was not deprived of a fair trial.
J. Sentencing Issues
There are multiple sentencing problems presented in this case. First, the trial court imposed two five-year terms for enhancements under Penal Coe section 667, subdivision (a)(1) where to two convictions arose from the same accusatory pleading. Second, it ordered that the terms imposed for the enhancements run concurrently with the "sentence imposed." Third, the minutes and abstract of sentence incorrectly reflect that the term for count 3 was ordered to run concurrently. Finally, following the imposition of sentence, Senate Bill No. 1393 went into effect. As a consequence, the sentence as it pertains to the imposition of the enhancements must be reversed. We address each issue in seriatim fashion.
K. Unauthorized Terms for the Penal Code Section 667(a)(1) Enhancements
Defendant was charged with two enhancements under Penal Code section 667(a)(1), and separate Strikes for convictions of violating Penal Code section 288, subdivision (a), arising from a single accusatory pleading in 1994, Case No. FWV02270, for which he was placed on probation. He was also charged with a third enhancement (and strike) relating to a conviction allegedly occurring in 1996. However, that was not a conviction at all; instead, his 1994 probation was revoked in 1996, and he was sentenced on the original case. Eventually, the People agreed to dismiss the third allegation both as an enhancement pursuant to Penal Code section 667, subdivision (a)(1), and as a Strike allegation. The court imposed concurrent terms for the two enhancements arising from the same prosecution.
Because the third allegation, based on the revocation of probation, was stricken on the People's motion in the trial court, defendant's assertion that his admission of the priors was the product of ineffective assistance of counsel is moot. (Arave v. Hoffman (2008) 552 U.S. 117, 118.)
Penal Code section 667, subdivision (a)(1), provides in relevant part that any person convicted of a serious felony who previously has been convicted of a serious felony shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The language of the statute has been interpreted to mean that the predicate charges must have been formally distinct, from filing to adjudication of guilt. (People v. Wiley (1995) 9 Cal.4th 580, 585; In re Harris (1989) 49 Cal.3d 131, 136.)
It is undisputed that the two remaining five-year priors refer to convictions on separate counts within the same accusatory pleading resulting in convictions in 1994. Because they were charged together under the same case number and adjudicated in the same proceeding, they were not "brought and tried separately." (People v. Jones (2015) 236 Cal.App.4th 1411, 1415.) Based on the foregoing, defendant is only eligible for one enhancement for a serious felony prior conviction arising from that case. But that does not end our analysis.
If defendant had been sentenced to a determinate term, the five-year enhancement would have been added once to the total term of imprisonment. (People v. Sasser (2015) 61 Cal.4th 1, 7; People v. Tassell (1984) 36 Cal.3d 77, 89-92.) However, where a defendant is sentenced to multiple indeterminate terms, the Penal Code section 667, subdivision (a) enhancements are to be applied individually to each count of a third strike sentence. (People v. Sasser, supra, at p. 12; see also People v. Williams (2004) 34 Cal.4th 397, 405.) On remand, the trial court must correct this error.
Additionally, the court erred in imposing concurrent terms for the enhancements. Subdivision (a) of Penal Code section 667 clearly states that terms of the present offense and each enhancement shall run consecutively. (People v. Dotson (1997) 16 Cal.4th 547, 553.) The sentencing court has no discretion to sentence otherwise. (People v. Purata (1996) 42 Cal.App.4th 489, 498.)
Upon remand, defendant will still face an indeterminate third strike term for both counts 1 and 2. In that circumstance, a five-year enhancement will have to be imposed consecutive to each indeterminate term unless stricken in the exercise of the court's discretion.
Although only one enhancement pursuant to Penal Code section 667, subdivision (a)(1) may be imposed, both convictions may be considered for purposes of determining whether to impose an indeterminate sentence under the Strikes law. (People v. Fuhrman (1997) 16 Cal.4th 930, 940; People v. Allison (1995) 41 Cal.App.4th 841, 844.)
L. The Sentencing Court Is Entitled to an Opportunity to Exercise Discretion to Strike Prior Serious Convictions Pursuant to Senate Bill No. 1393
Defendant argues, and the People agree, that the trial court should be afforded an opportunity to exercise its discretion to strike the enhancements imposed pursuant to Penal Code section 667, subdivision (a)(1), respecting the serious felony prior convictions. We agree.
On September 30, 2018, the Governor Brown signed Senate Bill No. 1393 which, effective January 1, 2019, amends Penal Code sections 667, subdivision (a), and 1385, subdivision (b), to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes, in furtherance of justice. (People v. Garcia (2018) 28 Cal.App.5th 961, 971.) As an ameliorative amendment, it is proper to infer that the Legislature intended it to apply to all cases not yet final when the law became effective. (Id. at p. 973.)
We therefore reverse the sentence as to the serious felony prior conviction enhancements pursuant to Penal Code section 667, subdivision (a)(1), in order to allow the sentencing court to exercise its discretion to strike or impose the enhancement.
If the court decides to strike the enhancements, it will render any error in imposing terms on the enhancements moot.
M. The Minute Order Relating to the Sentencing and the Abstract of Judgment Must Be Amended.
In reviewing the record, we have noted a clerical error in the sentencing minutes and abstract of judgment, both of which reflect that the court imposed a concurrent term of 25 years to life on count 3, the violation of Vehicle Code section 2800.3, subdivision (a). However, the reporter's transcript of the oral proceedings at sentencing reflect that the court stayed the term for count 3 pursuant to Penal Code section 654. The minute order and abstract must be amended.
The abstract of judgment constitutes the commitment and is the order sending the defendant to prison, and the process and authority for carrying the judgment and sentence into effect; no other warrant or authority is necessary to justify or require its execution. (Pen. Code, § 1213; People v. Mitchell (2001) 26 Cal.4th 181, 185; In re Black (1967) 66 Cal.2d 881, 890.) It goes without saying that accuracy is essential in a document that prescribes the execution of sentence and is provided to Criminal Investigation and Identification. (Pen. Code, § 1213, subd. (a).)
This court has the authority to correct clerical errors at any time. (People v. Mitchell, supra, 26 Cal.4th at pp.186-187.) The clerk is directed to amend the minutes and the abstract of judgment to reflect that the sentence for count 3 was stayed pursuant to Penal Code section 654.
IV.
DISPOSITION
The convictions are affirmed. The sentence is vacated and remanded. On remand, the sentencing court may exercise discretion to either strike or impose the serious felony prior conviction enhancement pursuant to Penal Code section 667, subdivision (a)(1), on one or both of the indeterminate terms, and prepare an amended abstract of judgment and sentencing minutes. The amended minutes and abstract shall also reflect that the sentence for count 3 was stayed pursuant to Penal Code section 654.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. SLOUGH
J.