Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA312366. David S. Wesley, Judge.
Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Ray Anthony Lopez was convicted, following a jury trial, of the attempted murders of Pamela Green, Charles Johnson and Nick Quinn in violation of Penal Code sections 187 and 664 and one count of making criminal threats in violation of section 422. The jury found true the allegations that the attempted murders were willful, deliberate and premeditated and that the crimes were all hate crimes within the meaning of section 422.75, subdivision (a). The jury also found true the allegations that appellant personally used a deadly weapon, a knife, in the commission of the attempted murders within the meaning of section 12022, subdivision (b)(1) and personally inflicted great bodily injury on Green within the meaning of section 12022.7. The trial court sentenced appellant to three consecutive life terms with the possibility of parole for the attempted murder convictions, plus 15 years for the various enhancements to those convictions. The trial court stayed sentence on the criminal threats conviction pursuant to section 654.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appeals from the judgment of conviction, contending there is insufficient evidence to support the attempted murder convictions and the hate crime enhancements. Appellant also contends that the prosecutor committed misconduct in closing argument. Appellant further contends, and respondent agrees, that the abstract of judgment should be corrected to reflect that the sentence for the attempted murder convictions was life with the possibility of parole. We order the abstract of judgment corrected as set forth in the disposition and affirm the judgment of conviction in all other respects.
Facts
On the evening of November 9, 2006, about 10:30 p.m., Pamela Green left her residence at the Alexandria Hotel in downtown Los Angeles and walked west on Fifth Street. She was carrying a white bag and a garbage can filled with merchandise which she hoped to sell at the corner of Fifth and Broadway. Appellant came up behind her and yelled: "I'm going to kill you niggers. I can't stand you niggers. I'll kill all you niggers." Green is African-American. Appellant also said: "I'm going to kill you, nigger bitch."
Green turned and looked at appellant. He pulled out a knife and opened it. Appellant yelled that he was going to kill Green and tried to stab her in the back. Green held up her garbage can to protect herself. She said: "What's wrong with you? You crazy or something[?]" Appellant's knife went through the garbage can. Green dropped her merchandise and tried to run across the street. She screamed for help.
Appellant continued to yell that he was "going to kill you niggers," and he "can't stand you niggers." As appellant yelled that "some niggers is going to die tonight" and he was "going to kill some of you niggers tonight," an African-American man rode up on a bicycle. According to Green, the man blocked appellant and told Green to run. Appellant then started trying to stab the man on the bicycle. The man used his bicycle and his backpack as a shield.
Green reached a pay telephone on the other side of the street, called police, and told them of appellant's attacks. Appellant caught up with Green and stabbed her in her breast, close to her heart.
Appellant then tried to run away, apparently because he realized that a group of Hispanic people were staring at him. As he ran, police arrived. The people on the street pointed at appellant.
Appellant approached Nick Quinn, who had a bicycle but was waiting at a bus stop at Fifth and Broadway. There were a number of people waiting at or near the stop, but Quinn was the only African-American. He asked Quinn: "Are you a Crip?" Quinn replied: "No." He was a graphic designer who worked in the area and a substitute school teacher. Appellant repeated his question two more times. Quinn yelled for the police. Appellant began making overhand stabbing motions toward Quinn. Quinn, who had his bicycle with him, used it to protect himself. Appellant tried to stab Quinn twice, aiming at his upper body, particularly his chest, face and neck.
A police car arrived. Appellant folded his knife and began to walk away. Los Angeles Police Officer Bruno Guzman and his partner Officer Cohen drew their guns, approached appellant and told him to drop his knife. Officer Guzman had to repeat the command several times before appellant complied. The officers arrested appellant. Officer Cohen recovered a buck knife from the sidewalk. The knife had a 3.5 inch blade and was about 8.5 inches long when open.
Green came into view, holding the left side of her chest. She was bleeding from her chest and stomach area. She pointed toward appellant and said: "That's him, that's the guy who stabbed me." Appellant called her a "nigger bitch."
Green collapsed on the sidewalk. Officers called an ambulance, which took Green to a hospital where she spent two days. The cut in her chest required 15 stitches and left her permanently scarred.
After Green was taken away, Charles Johnson rode up to police on his bicycle. Johnson is African-American. He told police that appellant was the man who stabbed Green. Johnson also described his own encounter with appellant.
Johnson had been riding his bicycle along Fifth Street when he heard a man and woman yelling at each other. The woman said: "I didn't even do anything to him and I don't know why he's trying to stab me." The woman was Green. The man, later identified as appellant, was yelling: "I don't even like Black bitches." He ranted and raved about Black people in general, using the word "nigger." As Johnson rode by, appellant shoved him. Johnson said, "Take it easy, partner."
Johnson stopped his bicycle for a red light and noticed that appellant had a knife. Johnson got off his bicycle and turned his backpack around to use as a shield. Appellant swung his knife at Johnson, toward the hip area on the lower side of the abdomen. The knife touched Johnson but did not cut him. Johnson threw his backpack at appellant. Appellant followed Johnson briefly but then went toward Green. Ranting and raving about how he "don't like nigga bitches," appellant stabbed Green.
After the police finished interviewing Johnson and Quinn, Officer Guzman took appellant to the Central Division police station. During the drive, appellant said that he had been walking along the street when 15 to 18 "black niggers" tried to rob him, and that he had tried to defend himself by stabbing them. Appellant called Green "a fucking nigger bitch."
At the station, appellant was placed next to several African-American arrestees during the booking process. Appellant said: "Look at all these fucking niggers. That's what's wrong with this world. Look at all these fucking niggers." He added: "There are too many niggers here." Officer Guzman moved appellant to a segregated holding cell. As the move began, appellant turned to an African-American officer working on paperwork nearby and said: "What the fuck are you looking at, nigger?" He also said: "You don't see that many niggers working in the station in one place." The African-American officer had never heard anyone speak to him in such a blatantly racist manner before.
Later that evening, Detective Victor Corella interviewed appellant. Appellant did not have any visible injuries and did not complain of any. Appellant stated that he was walking around with three bags of clothing that he had recently purchased, when some guy accosted him, called him a "fuckin' Mexican" and a "mother fucker." There were 18 African-Americans, men and one woman, who were "running bicycles and shit." He described the woman as "threatening" and a "shot-caller." The woman said: "Fuck, you're nothing but a dumb Mexican. I'm gonna fuck you up and all kinds of shit." Appellant felt he had no choice but to stab the woman. He did so because she was "shotcalling" and had taken all his belongings, not because she was African-American. He also said: "I don't like niggers, man. I don't like niggers. I've been hearing about niggers, fuckin' busting into goddamn office buildings and fucking white girls and Mexican girls." He also stated that he had painted his nails black because he had dedicated his life to "killing niggers" who he believed controlled the entertainment industry and wanted to take over the entire country. In his 28 years with the Los Angeles Police Department, Detective Corella had never heard anyone use the "N word" in an interview as many times as appellant did.
At trial, appellant testified that on November 9, 2006, he lived with a Black family in South Central Los Angeles.
On November 9, he went shopping and bought about $200 worth of merchandise which he was carrying in three bags. He also went to an art show on Fourth Street and to La India Cafe on Broadway. After leaving the cafe, he walked south on Broadway. At the corner of Fifth and Broadway, he encountered a large group of Black people who insulted him and called him a "fucking Mexican." Two of the men in the group were on bicycles. Appellant insulted the group back. Green was part of that group and did all the talking, so he believed that she was a "shot-caller." Appellant believed that Green was trying to provoke him into attacking her so that the group could rob him. Three of the men approached appellant, hit him and grabbed at a bag. Green also hit him and tried to take his bags. Appellant went into a fury and used his knife. He claimed that Quinn had had a pistol. One of the men held appellant while three others beat him with a blunt object. Appellant freed himself. The men took his bags and fled. He tried to stab Green because she had encouraged the men to beat him up. Appellant did not want to kill Green, just silence her.
On cross-examination, appellant claimed that his fingernails were painted black for style. He said that he went to the beauty shop with one of the Black ladies he lived with and painted his fingernails black with her.
Discussion
1. Sufficiency of the evidence – attempted murder
Appellant contends that there is insufficient evidence to support his convictions for attempted murder. There is sufficient evidence to support all three convictions.
In reviewing a challenge to the sufficiency of evidence, "the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432.)
"The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." (People v. Stanley (1995) 10 Cal.4th 764, 792-793, internal quotation marks and citations omitted.)
Appellant contends that he attacked Green in a heat of passion or sudden quarrel and so there was an absence of the malice required to support an attempted murder conviction. He contends that at most he was guilty of attempted voluntary manslaughter because there is no dispute that he and Green were "yelling harsh words at one another to the point that Mr. Johnson testified he thought it was a domestic dispute." There may not be a dispute that Green and appellant were yelling, but there is a dispute as to what words they were yelling. The only possibly derogatory statement acknowledged by Green was yelling at appellant, "Are you crazy or something?"
Appellant testified that Green and others taunted him and struck him with objects. On appeal, we assume that the jury credited the testimony most favorable to the judgment. (See People v. Holt (1997) 15 Cal.4th 619, 667-668.) That would be Green's testimony, not appellant's.
It is highly doubtful that Green's "crazy" remark could constitute adequate provocation for voluntary manslaughter. (See, e.g. People v. Gutierrez (2009) 45 Cal.4th 789, 826-827 [victim's cursing, scratching and kicking defendant not sufficient provocation]; People v. Lee (1999) 20 Cal.4th 47, 59-61 [mere fact of argument not sufficient provocation]; People v. Manriquez (2005) 37 Cal.4th 547, 586 [calling defendant a "motherfucker" and challenging him to use a weapon not sufficient provocation].) Further, even if the "crazy" remark might have supported a voluntary manslaughter verdict, it certainly did not compel one. A reasonable jury could have found that the crazy remark was not sufficiently provocative to cause an ordinarily reasonable person of average disposition to act rashly or without due deliberation and reflection. (See People v. Gutierrez, supra, 45 Cal.4th at pp. 826-827; People v. Lee, supra, 20 Cal.4th at pp. 59-61; People v. Manriquez, supra, 37 Cal.4th at p. 586.)
Appellant contends that there is insufficient evidence that he intended to kill Johnson and Quinn and so the evidence at most supports an assault conviction.
Appellant's words and actions are more than sufficient evidence that he intended to kill Johnson. As Green was crossing the street in an attempt to escape appellant, Johnson rode up and stopped between Green and appellant. Appellant continued yelling, "I'm going to kill you niggers. I can't stand you niggers. Some niggers is going to die tonight. I'm going to kill some of you niggers tonight." Appellant started trying to stab Johnson. Johnson is a Black man.
Appellant contends that his threats were general threats and could only show a specific intent to kill Johnson if he had actually succeeded in killing Johnson. He relies on People v. Bland (2002) 28 Cal.4th 313 to support this argument. This reliance is misplaced. The Court in Bland held only that "[a] person who intends to kill only one is guilty of the attempted (or completed) murder of that one but not also of the attempted murder of others the person did not intend to kill." (Id. at p. 317.) Appellant's statements clearly refer to more than one person and show an intent to kill more than one person. The opinion in Bland has no relevance here.
Appellant also contends that since he abandoned his attack on Johnson after Johnson threw his backpack and was defenseless, the only reasonable inference is that he never intended to kill Johnson. There could be a number of reasons that appellant stopped his attack on Johnson. It would be reasonable to infer that he decided that Johnson's resistance made him too difficult a target. Johnson was far from defenseless without his backpack, having initially used his bicycle as a defensive weapon. It would also be reasonable to infer that he realized that Green was attempting to call for help and decided that she was the more urgent target.
Appellant's actions, coupled with his earlier statements about killing Black people, are also more than sufficient evidence that he intended to kill Quinn. Quinn was standing at a bus stop with a group of people when he was attacked by appellant. Quinn was the only Black person in the group. Appellant attempted to stab Quinn in the area of his face, neck and chest. Quinn put up his bicycle as a defensive barrier and backed up to avoid appellant's attack.
Appellant contends again that his threats were general threats and could not show an intent to kill Quinn. Although appellant did not make the threats while attacking Quinn, the threats still have relevance. Appellant stated his intent to kill Black people. After attacking Green and Johnson, appellant attacked the next Black person he saw, Quinn. It is more than reasonable to infer that appellant intended to kill Quinn as part of his stated plan to kill Black people. "[A] person who intends to kill can be guilty of attempted murder even if the person has no specific target in mind. An indiscriminate would-be killer is just as culpable as one who targets a specific person." (People v. Stone (2009) 46 Cal.4th 131, 140.) An individual "who simply wants to kill as many people as possible, and does not know or care who the victims will be, can be... guilty of attempted murder." (Ibid.)
Appellant contends that since he never got closer to Quinn than 3 or 4 feet, the only reasonable inference is that his stabbing motions were simply an attempt to keep the "rather imposing Quinn (5'-11.5 tall, 245 pounds with dreadlocks) 3 to 4 feet away." This is not a reasonable inference at all. Quinn had made no movement toward appellant. Appellant approached Quinn, who was standing waiting at a bus stop, and attacked him. Approaching a person and attacking him cannot reasonably be viewed as a way to keep that person at a distance.
2. Sufficiency of the evidence – hate crime enhancements
Appellant contends that there is no evidence that he attacked Johnson or Quinn because they were Black, and so has no evidence to support the hate crime enhancements as to those two victims.
A hate crime is a "criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim:... Race or ethnicity." (§ 422.55, subd. (a).)
Appellant made numerous threatening and derogatory statements about Black people before and during his attack on Johnson and before his attack on Quinn. He called them "niggers" and stated that he wanted to kill "all niggers." Green, Johnson, Quinn and the arresting officers all testified that there were a number of other people in the area where the attacks took place, but those people were all or almost all Hispanic. Appellant chose to attack the three Black people in the area. There is no evidence that appellant had ever encountered Johnson or Quinn before that evening or had any motive to attack them. It is more than reasonable to infer that appellant attacked Johnson and Quinn in whole or in part because of their race.
Appellant contends that his derogatory comments were directed only at Green, Johnson inadvertently rode his bicycle in between appellant and Green and appellant attacked Johnson with a knife only after he said "Take it easy partner." Assuming for the sake of argument that the jury could have inferred that appellant attacked Johnson because he interfered with appellant's fight with Green, that would not invalidate the verdict. (People v. Stanley, supra, 10 Cal.4th at pp. 792-793 [if circumstances reasonably justify trier of fact's findings, opinion of reviewing court that circumstances might also reasonably be reconciled with contrary finding does not warrant reversal of the judgment].)
We question whether such an inference would be reasonable. Appellant's comments were not limited to Green, but referred to "all niggers." Johnson testified that appellant shoved him as he rode by, before he said anything to appellant.
Appellant appears to contend that he attacked Quinn because he had a bicycle and was wearing blue, and appellant believed him to be a Crip. Again assuming for the sake of argument that the jury could have inferred that appellant attacked Quinn because he believed Quinn was a Crip, that would not invalidate the verdict. (People v. Stanley, supra, 10 Cal.4th at pp. 792-793.)
3. Prosecutorial misconduct
Appellant contends the prosecutor committed various acts of misconduct during closing argument. Appellant did not object to this misconduct or seek admonishments in the trial court. A defendant forfeits his claim of prosecutorial misconduct if he fails to object and seek an admonishment in the trial court. (People v. Brown (2003) 31 Cal.4th 518, 553.) Appellant contends that the "sheer number" of the instances of misconduct rendered any objection futile. Absent some attempt by appellant to object to the prosecutor's remarks, there is no basis to find futility. Assuming that the prosecutor was committing misconduct, objections from appellant's trial counsel might have discouraged a continuation of that misconduct. (See People v. Brown, supra, 31 Cal.4th at p. 553 [purpose of rule requiring objection is to give court the opportunity to "instruct counsel and forestall the accumulation of prejudice by repeating improprieties"].) Accordingly, appellant's claim is waived.
Appellant contends that if the claim is waived, he received ineffective assistance of counsel.
Appellant has the burden of proving ineffective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, appellant must show that his counsel's performance fell below an objective standard of reasonableness, and that, but for counsel's error, a different result would have been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.) "Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' [Citations.]" (People v. Thomas (1992) 2 Cal.4th 489, 530-531.)
"When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for the counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation." (People v. Anderson (2001) 25 Cal.4th 543, 569.)
Our Supreme Court has repeatedly pointed out that "'[a]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel.' [Citation.]" (People v. Avena (1996) 13 Cal.4th 394, 442.)
a. Misstatements of fact
Appellant contends that three remarks by the prosecutor argued facts not in evidence or were misstatements of fact. These remarks all involve details of appellant's attempts to stab Johnson and Quinn.
Appellant objects to the prosecutor's statement that appellant attempted to stab Mr. Johnson "numerous times in the lower abdomen." This statement is accurate and supported by the record. Johnson testified that appellant was swinging and waving the knife at him during the attack. This testimony may reasonably be understood as describing multiple attempts at stabbing Johnson. At one point Johnson described the area where the knife touched him as his hip and another time as the area of his lower abdomen.
Appellant complains of the prosecutor's statement that appellant tried to stab Mr. Johnson in the "stomach" just missing him and called him a "nigger." This is slightly inaccurate. Appellant's knife did not miss Johnson, as the prosecutor stated. The knife touched him but did not cut him. Johnson agreed that the stabbing was directed toward his abdomen, but stomach and abdomen are often used interchangeably and the stomach is part of the abdomen. There could be no prejudice to appellant from these inaccuracies. The "nigger" reference is a reasonable inference from the evidence. Appellant made derogatory and threatening remarks using the word "niggers" before and during his attack on Johnson. A reasonable person could understand these remarks as including Johnson. This statement cannot reasonably be understood as arguing facts outside the record.
Appellant also complains of the prosecutor's statement that appellant attempted to stab Mr. Quinn in the upper chest "two to three" times. This is inaccurate. Quinn testified that appellant attempted to stab him two times. The prosecutor's remark is most reasonably understood as showing that he did not remember the exact number of attempts. It cannot reasonably be understood as asserting that there were facts outside the record showing that a third attempt was made.
It might have been sound strategy for appellant's trial counsel to object to the above-identified minor inaccuracies, but that was not the only sound strategy available to counsel. The inaccuracies were not prejudicial. They involved details of the stabbings of two of the victims, and an objection by appellant and restatement by the prosecutor would have highlighted the facts. It was equally sound strategy for appellant's counsel to remain silent so as not to emphasize those details. The choice between such sound strategies is particularly in the province of trial counsel and not this court.
b. Statements based on personal opinion and integrity of office
Appellant contends the following remark by the prosecutor was improper personal opinion based on outside experience and facts not in the record: "I filed the case. I work in the unit that we prosecute hate crime cases. And what that means is, over the years, we have one prosecutor dedicated to handling certain types of cases in our office. Whether it be hard core gangs, whether it be sex crimes, whether it be major frauds, whether it be family violence, we have prosecutors who are designated and trained in these particular areas. They're areas of expertise, that they'll handle these cases from the initial filing. [¶] When Officer Wynn comes in my office and says, 'we have a filing. Would you review it,' we review it. We talk to supervisors to make sure the appropriate charges are filed. We don't overfile our cases. We don't under-file our cases. [¶] If it's a robbery case, and someone used a weapon, we don't file a theft, a misdemeanor theft. If there is a home invasion burglary, we don't under-file it and put simple theft of property at a residence. If there is a felony hit and run, we don't just file speeding or going through a stop sign. We file the appropriate charges based upon the state of the evidence that's brought to us. [¶] We did not file – I did not file – an assault with a deadly weapon. Assault with a deadly weapon, taking a weapon and assault. You don't have to touch the person. You don't even have to really put it in a menacing manner. You can just have it out, it's an assault with a deadly weapon. [¶] That's not what Ray Lopez did. There's no evidence to support that whatsoever. What he did was he attempted to kill three people."
The prosecutor made these remarks in response to a claim by appellant's trial counsel that the prosecution had gone "overboard" in charging appellant with attempted murder rather than assault with a deadly weapon. The prosecutor's discussion of how the district attorney's office works and the references to areas of expertise were unnecessary and standing alone would constitute improper vouching for the appropriateness of the charges filed. It was followed almost immediately by an explanation of the crime of assault with a deadly weapon and why the prosecutor believed that the evidence showed a more serious crime, however. Taken as a whole, the prosecutor's remarks do not urge the jury to rely on his experience in filing charges. The remarks urge the jury to consider the evidence and reject the lesser offense of assault because appellant's conduct manifested an intent to kill and was more serious than an assault.
The prosecutor first discussed greater and lesser included crimes unrelated to the case against appellant, such as robbery and theft. While unnecessary, there is nothing prejudicial about this discussion.
It might have been sound strategy to object to the discussion of the prosecutor's work unit. Trial counsel could have reasonably decided not to object because he believed that the comments as a whole were not improper and made the prosecutor sound overly defensive about his decision, thereby strengthening his claim that the prosecutor went overboard. The choice between such sound strategies is particularly in the province of trial counsel and not this court.
Appellant relies on People v. Alvarado (2006) 141 Cal.App.4th 1577 to show error. In Alvarado, the prosecutor stated: "I have a duty and I have taken an oath as a deputy District Attorney not to prosecute a case if I have any doubt that that crime occurred. [¶] The defendant charged is the person who did it." (Id. at p. 1581.) Thus, the comment in Alvarado concerned the guilt or innocence of the defendant and implied that the prosecutor had information outside the record showing that guilt.
Here, the prosecutor did not state that he only prosecuted people he believed were guilty, and did not imply that he had knowledge of facts outside the record which would support the charges. The prosecutor discussed the evidence in the record and argued that it showed a more serious crime than assault. That was proper. (People v. Ayala (2000) 24 Cal.4th 243, 288 [prosecutor's statement that defendant merited nothing less than the death penalty and that she did not ask for it lightly was not vouching for appropriateness of verdict sought].)
c. Misstatements of law
Appellant contends that the following comments by the prosecutor misstated the law and attempted to shift the burden of proof to appellant: (1) using the example of a stop sign to explain the concepts of premeditation and deliberation; (2) claiming that voluntary manslaughter did not require an intent to kill; (3) stating that racial animosity should be at least 51 percent of the motive for a hate crime; and (4) commenting on appellant's failure to call certain witnesses or produce certain documents.
The prosecutor gave the following explanation of premeditation and deliberation: "Stop signs. You are driving. You look to the left when you come to a stop sign. You look to the right. You decide whether it's safe to enter. Then you go forward. [¶] Some of us might even look to see if there is a police officer around. But these are decisions you make. It's a matter of a second or two. It's a quick decision. It's not something you go, 'Um, what do I do here? Do I do this? Is it right to go?' [¶] The other decision is the same thing. Railroad crossings. But again, that split-second decision involved a deliberation. You thought about it for a moment. 'Do I go? Do I not go? If I go, and if I blow the stop sign, someone might hit me. Is it safe to enter?' Involved premeditation, weighing it beforehand. [¶] The consequences. You went in there. You have children in your car. If you blow the stop sign, guess what? Somebody might be injured. If there's nobody around, you're in a hurry, you might slow down, do what they call a California stop, and then kind of move through it quickly because you have to be somewhere, versus now I have lots of time. I don't need to worry about that. [¶] That's all it is. They're not any special words. They are legal words we throw in there to try to explain the mental state of an individual."
Appellant contends that these comments misstated the law and attempted to shift the burden of proof to appellant. Appellant relies on People v. Nguyen (1995) 40 Cal.App.4th 28 to support his burden shifting claim. In Nguyen, the prosecutor used a traffic analogy to explain the concept of proof beyond a reasonable doubt. That case has no application here. There is nothing in the prosecutor's stop sign remark which refers directly or indirectly to the requirement of proof beyond a reasonable doubt.
Appellant contends that the three categories of premeditation and deliberation are (1) prior planning activity; (2) motive; and (3) the manner of the attempted killing, and that the stop sign example was inconsistent with those categories. Appellant relies on People v. Anderson (1968) 70 Cal.2d 15 to support his argument. The three categories listed by appellant are categories of evidence which can show premeditation and deliberation. The stop sign example is an explanation of the concepts of premeditation and deliberation. The example is not inconsistent with and does not contradict the categories of evidence described in Anderson. Further, the three Anderson categories are not "an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation." (People v. Perez (1992) 2 Cal.4th 1117, 1125.)
An objection to the stop sign discussion would have been meritless. Counsel had no duty to make such an objection. (People v. McPeters (1992) 2 Cal.4th 1148, 1173.)
As a preface to his discussion of attempted voluntary manslaughter, the prosecutor stated: "You are also going to get an instruction called attempted voluntary manslaughter, is the unlawful killing of a human being without malice aforethought. So no intent to kill. No words, no real actions. You don't happen to have that." Appellant contends that the prosecutor misstated the law of attempted voluntary manslaughter when he stated that intent to kill was not required. This does appear to be a misstatement of the law, but an inadvertent one, as the prosecutor immediately corrected himself and stated: "The person had the intent to kill but not an express malice. The actions taken to kill were unlawful." Given the speed with which the prosecutor corrected herself, appellant's trial counsel acted reasonably in not objecting. Such an objection would have been superfluous. (See People v. McPeters, supra, 2 Cal.4th at p. 1173 [no duty to make unmeritorious objection].)
In discussing the hate crime allegations, the prosecutor explained: "And you may think there was another motive, that there's other motives. But this is a substantial basis. This is the number one. 51 percent versus 49 percent, that's what substantial basis means." Appellant contends that this statement is an attempt to lower the burden of proof for the hate crime allegations from beyond a reasonable doubt to a preponderance of the evidence. The statement cannot be reasonably understood as referring to the burden of proof. The statement clearly refers to the motive requirement of a hate crime allegation. As such, there is nothing misleading about it.
A hate crime is defined as a crime which occurs "in whole or in part because of" the victim's race. (§ 422.55, subd. (a).) "In whole or in part" is in turn explained as follows: "When multiple concurrent motives exist, the prohibited bias must be a substantial factor in bringing about the particular result." (§ 422.56, subd. (d).) The prohibited motivation need not be the "predominant cause" of the offense. (In re M.S. (1995) 10 Cal.4th 698, 716.)
An objection would have been meritless. Counsel had no duty to make such an objection. (People v. McPeters, supra, 2 Cal.4th at p. 1173.)
In response to appellant's argument that the People did not call certain witnesses, the prosecutor stated: "[E]very person in a trial here, we have the opportunity to use something. We have the right to use the subpoena power of the courts. These are subpoenas. They are available to the people as well as the defense. They can subpoena any and all witnesses. So can we. As well as get documents.... [¶]... What about people that you never heard from from the defense side? What about this lady who he goes to the beauty store with and gets his nails done there... ? [¶] What about the store owner that he purchased items through that day? Where is that person? [¶] Where is the individual, people at the restaurant that he went to that night?... They're not here, because it didn't exist. [¶] Ladies and Gentlemen, where are the people from the art exhibit that he went to? And where are these receipts?... The receipts aren't here because it didn't happen."
Appellant contends that these remarks were an attempt to shift the burden of proof to him. It is perfectly proper for the prosecutor to comment on "a defendant's failure to introduce material evidence or to call logical witnesses." (People v. Wilson (2005) 36 Cal.4th 309, 338.) That is what the prosecutor did here. He did not improperly suggest that appellant was required to put on a defense.
An objection would have been meritless. Counsel had no duty to make such an objection. (People v. McPeters, supra, 2 Cal.4th at p. 1173.)
d. Vouching for witnesses
Appellant contends that the following three statements constituted improper vouching for witnesses: (1) "[Quinn's] a teacher, an elementary school teacher. He has no reason to lie. No bias, nothing to gain. He was there... [at] a bus stop... with his bicycle." (2) "[The defense] have to concede that the People's witnesses are uncontroverted," and (3) "Believe me, [Ms. Green] thinks she's dying."
The first remark was a proper comment on the evidence concerning Quinn. There was nothing in the record to suggest that Quinn had any prior contact with appellant or any reason to make untruthful statements. Since the comment is based on evidence in the record, and on reasonable inferences there from, it was not vouching. (People v. Ward (2005) 36 Cal.4th 186, 215 [prosecutor's assurance that witness is apparently honest is proper when based on facts in record and reasonable inferences from those facts].) An objection would have been meritless. Counsel had no duty to make such an objection. (People v. McPeters, supra, 2 Cal.4th at p. 1173.)
The second remark, that witnesses were uncontroverted, is not accurate. Appellant's own testimony did controvert the People's witnesses. The remark does not imply that the prosecutor knew some additional facts about the witnesses, however. It comes closer to implying that he was unaware of facts in the record. It is not vouching. An objection on that ground would have been meritless. Counsel had no duty to make such an objection. (People v. McPeters, supra, 2 Cal.4th at p. 1173.)
The third remark, asking the jury to believe the prosecutor that Green thought she was dying, was part of a much longer discussion of why Green was a credible witness. The remark was prefaced by the prosecutor's explanation that Green's 911 call was an excited utterance and followed by a discussion of the timeline of the stabbing and 911 call and the prosecutor's conclusion that Green did not have time to reflect and make up a false story. The prosecutor also discussed the various statements by Green in the 911 call which were corroborated by other witnesses. It is not reasonable to understand the prosecutor's comments as a whole as suggesting that he was privy to even more evidence about Green from outside the record. An objection would have been meritless. Counsel had no duty to make such an objection. (People v. McPeters, supra, 2 Cal.4th at p. 1173.)
e. Comments on failure to call character witnesses
As discussed above, the prosecutor commented on appellant's failure to call the Black woman he went to the beauty store with. Specifically, the prosecutor stated: "What about this lady who he goes to the beauty store with and gets his nails done there, where is she to come in and say, "You know what? He didn't do it. He's a good guy. He has no problems with African-Americans." Appellant contends that this remark was an improper argument that the jury could infer bad character from his failure to call a good character witness.
The prosecutor presented ample evidence that appellant had a bad character, that is that he was a racist who hated Black people. In response, appellant testified, among other things, that he lived with Black people and was friendly with a Black woman. The prosecutor's comment about appellant's failure to call that woman as a witness simply suggests that appellant was not being honest when he claimed to have such a friend and to get along with Black people. It was not an attempt to shift the burden of proof. An objection on that ground would have been meritless. Counsel had no duty to make such an objection. (People v. McPeters, supra, 2 Cal.4th at p. 1173.)
Appellant relies on People v. Harris (1926) 80 Cal.App. 328 and People v. Adams (1928) 92 Cal.App. 6 to support his claim. This reliance is misplaced.
In Harris, the defendant called several character witnesses who testified to his reputation as a peaceable and law abiding citizen. (People v. Harris, supra, 80 Cal.App. at p. 330.) In closing argument, the prosecutor referred to the defendant's failure to call his superiors at work to testify about his good character. There is nothing to suggest that the defendant in any way relied on or referred to the opinions of his superiors at work to support his claim that he had good character. The Court of Appeal found misconduct, reasoning: "If counsel could properly argue that the sheriff, under-sheriff, and chief deputy had not been called, why might he not with perfect propriety secure a list of all of the acquaintances of the defendant and so argue as to each and every one of them?" (Id. at p. 334.)
Here, appellant proffered evidence that he was friendly with a Black woman in part to impeach his earlier statement to police he had painted his nails black because he had dedicated his life to killing "niggers." Thus, that relationship was relevant to show appellant's good character, specifically his lack of racism. The prosecutor was thus commenting on appellant's failure to call a witness identified by appellant. He was not picking at random from the universe of people with whom appellant interacted. Harris has no application to this case.
In Adams, the prosecutor argued: "[I]s the American Legion or is a soldier of America proud of a man that would hide behind his record of service to his country to defend him for conduct like this? Why hasn't he brought some of his good American Legion friends in here to have his character for morality and standing in the community-." (People v. Adams, supra, 92 Cal.App. at p. 10.) The trial court found that this and similar comments by the prosecutor were improper because the defendant's character was not an issue in the trial. (Ibid.)
Here, appellant's character was at issue. The prosecutor offered evidence of bad character and appellant offered his own testimony that he had a good character. Thus, Adams has no application to this case.
4. Correction of sentence
Appellant contends that the clerk of the court erred by noting in the minutes and the abstract of judgment that appellant received a sentence of life without the possibility of parole. Respondent agrees. We agree as well.
The trial court stated at the sentencing hearing that it was imposing sentences of life with the possibility of parole. That is a proper sentence for premeditated attempted murder. (§ 664, subd. (a).) There is no statutory basis for imposing the greater sentence of life without the possibility of parole. The abstract of judgment must be corrected.
Disposition
The clerk of the superior court is directed to prepare a corrected amended abstract of judgment showing that appellant's sentence for the attempted murder convictions is three consecutive terms of life with the possibility of parole and to deliver a copy of that corrected abstract to the Department of Corrections and Rehabilitation. The judgment of conviction is affirmed in all other respects.
We concur: TURNER, P. J. KRIEGLER, J.