Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No, BF120808A . Louis P. Etcheverry, Judge.
Alex N. Coolman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, J.
INTRODUCTION
Appellant Daniel Phillip Lorenz was convicted after jury trial of felony vandalism and of willful or unlawful use of force or violence against Aaron Blinn. (Pen. Code, §§ 594, subd. (b)(1); 243, subd. (a).) Appellant was acquitted of making terrorist threats against Blinn. (§ 422.) The court found true two prior prison term enhancement allegations and two enhancement allegations that appellant committed an additional felony offense after he was released from custody on an earlier felony offense. (§§ 667.5, 12022.1.) Appellant filed a motion for new trial, which was denied. He was sentenced to an aggregate term of six years imprisonment.
Unless otherwise specified all statutory references are to the Penal Code and all dates refer to 2008.
Appellant was originally sentenced to four years’ imprisonment. However, the sentence was recalled and a previously stayed two-year enhancement was imposed as part of a plea bargain resolving another case.
Appellant argues the trial erred by denying the new trial motion, the prosecutor committed misconduct during closing argument and the evidence is insufficient to support the vandalism conviction. None of these claims is persuasive. We will affirm.
FACTS
I. Prosecution Evidence.
Appellant and Blinn have lived in the same neighborhood for the past two years. During this time, appellant repeatedly drove vehicles through the neighborhood at high rates of speed. Appellant frequently revved his motorcycle in front of Blinn’s home, waking Blinn’s young children and scaring them. Because Blinn’s house is located on a corner and he was afraid that appellant would crash into his home, Blinn constructed steel barriers that he placed in front of the windows of a child’s bedroom and the kitchen. Blinn called the police to report appellant’s conduct. Also, on several occasions he asked appellant to stop revving his motorcycle. Appellant replied, “Fuck you. I’ll do whatever I want. You got a problem with me, we’ll take it out to the fields and we’ll handle this.” Appellant told Blinn that he belonged to a motorcycle militia gang. He also said that the police could not do anything to stop him. Blinn did not want to fight with appellant. On one occasion when Blinn tried to talk to appellant about his behavior, appellant complained about Blinn’s calls to the police. Blinn said that he was just trying to get appellant to stop his behavior. Appellant said, “Well, you just need to quit being the F’ing pussy and come talk to me yourself.”
Shortly after midnight on September 30, Blinn heard the revving of appellant’s motorcycle, which woke up his children. Blinn looked out a window and saw appellant in front of his house. Appellant drove straight down the street at a high rate of speed, doing a “wheelie.”
Blinn drove his truck to appellant’s residence to talk to him. He parked the truck near a blue vehicle. Appellant was inside the house. Appellant jumped out of a window and came over to the passenger side of Blinn’s truck. Appellant was screaming at Blinn. He beat on top of the passenger door and tried to open it. Blinn remained inside the truck. When appellant could not open the passenger door, he went around to the driver’s side. Appellant continued screaming at Blinn to get out of the truck. He yelled, “Mother fucker, get out of the fucking truck. I’m going to get your fucking ass.” The driver’s side window was open and appellant pushed Blinn on the left shoulder, shoving him further into the truck. Appellant tried to open the driver’s door; then he reached in through the open window and unlocked the door. He grabbed the door and violently jerked it open. The door hit the blue vehicle. As a result, the door bent and cracked. Blinn reached out and pulled the door back in but it could not fully close.
Blinn told appellant that he had woken up his children and asked him to please stop racing up and down the street. He also said that he had not called the police. Appellant seemed to calm down for a moment but then exploded in anger and screamed at Blinn. Spittle landed on Blinn’s face and Blinn could smell alcohol on appellant’s breath. Appellant said, “Things are only going to get worse for your family.” He also said, “My friends have been wanting to help me out and take care of you guys.” Appellant had “been holding them back” but he was not going to do so anymore. “They’re going to be able to do whatever they want.” All appellant needed “to do is call, and they’ll be there.”
At this point, Blinn drove home. He was frightened by appellant’s threats and believed that appellant would carry them out. Blinn called the police and then he called a neighbor, Richard Smith, to stay with his family. Smith is a retired police officer. While Smith was walking across Blinn’s front yard, he saw appellant drive a car 60 to 70 miles per hour down the street.
Manolito Sagun and his family live two doors down from appellant. During the month of September, Sagun saw appellant drive down the street on his motorcycle twice a week between 80 and 120 miles per hour at all times of the night and day. On the night of September 30, his wife and children were awakened by the sound of appellant’s motorcycle driving down the street; Sagun was already awake.
After the incident on September 30, groups of motorcyclists gathered outside of Blinn’s house on three occasions. Blinn was frightened and arranged for his wife and children to leave the state. Blinn stayed at various places and drove different vehicles “to stay alive.”
Mike Popovich lives in a house that shares a back fence with Blinn’s house. He received a phone call from Blinn after dark on October 10. Blinn asked him to help get his family out over his back fence and drive them to an aunt’s house. He agreed. Popovich helped Blinn’s wife and children over the back fence and drove them to the aunt’s house.
Photographic evidence was admitted depicting the damaged portion of the truck, the damaged portion of the blue vehicle and the barriers Blinn installed in front of his home.
It was stipulated that the damage to Blinn’s truck cost $868.36 to repair.
II. Defense Evidence.
Bakersfield police officer Lynn Martinez interviewed Blinn at 1:30 a.m. on September 30. Blinn told Martinez that appellant threw open the driver’s side door, pushed him, and then attempted to get into the passenger’s side of the truck. Blinn reported that appellant said, “… just wait. It’s only going to get worse for you and your family.” Martinez observed the damage to the truck’s door. She examined a blue Buick parked in front of appellant’s residence. It had scratches and minor damage that was consistent with Blinn’s statement. Martinez spoke with appellant’s grandmother, who owned the Buick. She denied any knowledge about the incident and was not concerned about the damage to the Buick. On October 1, Blinn gave Martinez a written account of the incident. It described appellant’s threat, his spitting and the smell of alcohol on his breath.
On the afternoon of September 30, appellant told Bakersfield police officer Joseph Dougherty that a neighbor had started an argument. Appellant denied pushing the neighbor or damaging anyone’s vehicle.
Justin Lopez lives near appellant and they are friends. Lopez never saw appellant driving fast in their neighborhood. After midnight on September 30, he was standing in his driveway when appellant drove up at a normal rate of speed and parked his motorcycle in the garage. A truck drove up and parked on the left-hand side of the road facing north. He heard appellant and the man in the truck yelling at each other. Then the driver of the truck quickly drove around the cul-de-sac and parked sideways on the sidewalk. The man in the truck told appellant that his motorcycle was too loud and that he should not be driving up and down the street this late at night. Appellant said that his motorcycle was not that loud. Lopez told the man in the truck, who he recognized as Blinn, to leave. Blinn said it was not Lopez’s business. Appellant said, “Well, if you’re going to keep doing this, then you can step in my front yard, but other than that you just need to leave.” Blinn opened the truck’s driver side door and then slammed the door and quickly drove away. Lopez did not see the truck’s door hit the blue vehicle. Appellant remained on his front lawn during the entire incident.
DISCUSSION
I. The new trial motion was properly denied.
A. Facts
During the prosecutor’s cross-examination of Dougherty he asked, “Did you attempt to -- or isn’t it true you attempted to talk to him in a more in-depth way about what happened and he refused to talk to you?” Dougherty replied, “Yes, sir. I advised him of the Miranda issue.” (Italics added.) Defense counsel objected on an unspecified ground and the court immediately sustained the objection. Defense counsel requested and obtained a sidebar discussion. Afterward, the prosecutor stated that he had no further questions. Appellant’s counsel completed his examination with two questions that were unrelated to this point. Then the court admonished the jury as follows:
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
“Before we proceed, ladies and gentlemen of the jury, there was, in this testimony, an answer made by the officer that referred to the exercise of Mr. Lorenz of his Miranda rights. And I want you to disregard that testimony for all purposes. You have to act as if it hasn’t been given.” (Italics added.)
The prosecutor did not reference appellant’s postarrest silence in his closing arguments.
As part of its jury charge, the court instructed:
“During the trial, the attorneys may have objected to questions or moved to strike answers given by the witnesses.
“I ruled on the objections according to the law.
“If I sustained an objection, you must ignore the question.
“If the witness was not permitted to answer, do not guess what the answer might have been or why I ruled as I did.
“If I ordered testimony stricken from the record, you must disregard it and must not consider that testimony for any purpose.”
Before jury deliberations commenced, the court asked if either counsel had anything to place on the record. Defense counsel stated:
“First of all, I want to put on the record we didn’t have a chance last week when there was the Miranda reference or the reference made to my client’s invocation of Miranda rights.
“I was quite aware that I have a right to, and the Court would seriously consider, a motion for mistrial at that point.
“At that point, my client instructed me and told me he was not going to consent to a mistrial at that time. And I was -- I want to make sure that the record is clear regarding my actions.” (Italics added.)
The jury deliberated for approximately three hours. It acquitted appellant of count one but found him guilty of counts two and three.
On March 27, 2008, appellant filed a new trial motion. In relevant part, appellant asserted that the prosecutor deliberately committed Doyle error based on the question that elicited the Miranda reference. In its opposition papers, the People asserted that the prosecutor did not intend to elicit a reference to appellant’s postarrest silence and that Dougherty’s reply came as “a total shock and surprise to the prosecutor.” The People argued that the matter was analogous to Greer v. Miller (1982) 483 U.S. 756 (Greer) and that no Doyle error occurred.
Doyle v. Ohio (1976) 426 U.S. 610.
After oral argument, the court denied the new trial motion. It explained its ruling as follows:
“I do think that the admonition by the Court -- and it was a single question that was asked concerning the post-arrest silence, post-Miranda arrest silence, that the jury followed that … admonition.
“And the cases that I read the -- those cases where the reversals came through, and the most pointed cases were situations where the trial court allowed the questioning of a post-arrest silence and did not try to cure it with any admonition.
“And, of course, I accept your argument and Mr. Hayward’s argument. With regards to timing the motion for a new trial, can’t -- can’t ignore the fact that by not making a motion for new trial the defendant, basically, had, the other option, [defense counsel], and that was wait to see what the jury verdict would be.
“And that appears that’s another consideration after the jury verdict came in, which was very good for him on the first cause of action, first count, and then -- then take a second -- take an attack and now bring up the equivalent of a mistrial on the case because you’ve got an acquittal on Count 1 and try to knock out a second count.
“I’m not saying that’s the reasoning, but that’s something that is out there as a potential reason for not asking for a motion for new trial before the jury verdict came in.”
2. No Doyle error occurred
“‘The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.’ [Citations.]” (People v. Williams (1988) 45 Cal.3d 1268, 1318.)
People v. Evans (1994) 25 Cal.App.4th 358 (Evans) clearly explained the applicable legal principles when a claim of Doyle error is raised. “Doyle holds that the prosecution violates due process if it uses the postarrest silence of a suspect who was given Miranda warnings to impeach an exculpatory explanation subsequently offered at trial.” (Id. at p. 367.) In assessing whether Doyle error occurred, one must consider Greer, which is “the most recent treatment of Doyle by the United States Supreme Court.” (Ibid.)
In Greer, the prosecutor asked the defendant why he did not give his exculpatory story to anyone when he was arrested. Defense counsel immediately objected and requested a mistrial. The trial court denied the mistrial motion but immediately sustained the objection and instructed the jury to ignore the question. The prosecutor did not mention the point during his closing argument. In its charge to the jury, the judge instructed the jurors to disregard questions to which objections were sustained. The Supreme Court concluded that no Doyle violation occurred. It explained that a Doyle violation has two components. The prosecutor must use a defendant’s postarrest silence for impeachment purposes and the trial court must permit such use. (Evans, supra, 25 Cal.App.4th at p. 368.) “The type of permission specified in Greer will usually take the form of overruling a defense objection, thus conveying to the jury the unmistakable impression that what the prosecution is doing is legitimate.” (Ibid.) Although the prosecutor in Greer asked an improper question, no Doyle error occurred because “the actions of the trial court there denied the prosecution permission to use the defendant’s postarrest silence.” (Ibid.)
A prosecutor’s improper use can occur either by a question or by a reference in closing argument. (Evans, supra, 25 Cal.App.4th at p. 368,) “Accordingly, depending on the context, the use can be attacked as evidentiary error, prosecutorial misconduct, or -- as occurred in Greer -- both. [Citations.]” (Id. at p. 368, fn. 6.)
This case is closely analogous to Greer. Although the prosecutor elicited testimony that commented on appellant’s postarrest silence, the court did not permit the People to use this testimony. The court immediately sustained defense counsel’s objection and it admonished the jury that it could not consider this testimony. During the jury charge, it again instructed the jurors that they were not to consider testimony that had been stricken or questions to which objections were sustained. The prosecutor did not make any reference to appellant’s postarrest silence in his closing arguments. Therefore, we agree with respondent that, “[a]ppellant’s post-arrest silence was never submitted to the jury as evidence from which it could draw an impermissible inference. Accordingly, no Doyle violation occurred.” (Fn. omitted.)
Furthermore, Doyle error is not per se reversible; prejudice is assessed under the harmless beyond a reasonable doubt standard. (People v. Quartermain (1997) 16 Cal.4th 600, 621.) In this case, the claimed Doyle error is harmless. The single impermissible question and reply were both brief. The trial court immediately sustained defense counsel’s objection and the jury was promptly admonished to disregard the improper testimony. The court reinforced this instruction when it included instructions in the final jury charge to disregard questions to which objections have been sustained and testimony that has been stricken. It is presumed that a jury will follow a court’s instructions, including an admonition to disregard improper comments. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) The impermissible question and response were not so inflammatory that reasonable jurors would have been unable to disregard the court’s instructions. The prosecutor did not reference appellant’s postarrest silence in his closing argument. There was strong evidence of appellant’s guilt of all three charged offenses and the favorable verdict on count one demonstrates that the jury was not inflamed against him by improper passion or prejudice. Therefore, we find the alleged Doyle error to be harmless beyond a reasonable doubt.
Finally, appellant briefly contends that because he had to make a tactical choice about whether to continue with the trial or seek a mistrial, he was forced to choose between his speedy trial right and his due process right. We reject the contention because no Doyle error occurred. Therefore, appellant’s due process right was not infringed. Furthermore, since appellant failed to support this contention with any authority, it is deemed to be without foundation and waived. (People v. Diaz (1983) 140 Cal.App.3d 813, 824.)
Accordingly, we uphold denial of the new trial motion.
II. No prosecutorial misconduct occurred.
A. Facts
During the prosecutor’s closing argument, he said:
“Aaron Blinn. One guy in the neighborhood was willing to face the defendant, to stand up to the bully. And he comes into court and he tells his story.
“And the question is: Should the defendant here be held to answer and be responsible for what he’s been doing and his actions, his behavior? Or should he not? Should we put a stamp of approval on what he’s doing? Should send him a message to go back out and do what you want to do because it’s your neighborhood, you own it, you do what you want?”
Defense counsel objected on an unspecified ground and the court sustained the objection. At defense counsel’s request, the court instructed the jury, “It’s not the jury’s you don’t send messages. That’s not your function. [¶] Your function is to listen to the facts, listen to the law, and make a decision.”
The prosecutor continued: “This is not defendant’s neighborhood, the place where he feels like it because it pleases him [sic].” Defense counsel objected on an unspecified ground. This objection was overruled.
The prosecutor continued:
“He can act whatever way he wants, do whatever he wants, terrorize whatever way he wants.
“Remember what he said to Aaron Blinn.
“Aaron Blinn first tried to talk to him about the problem and the noise and the kids.
“Do you remember what he said to him?
“Fuck you. I’ll do whatever I want to do.
“Your decision, ladies and gentlemen. It’s your case now.
“Just remember that every person in this country, every person has the right to be protected from fear and intimidation.”
B. The prosecutor did not suggest that the jury should contemplate sentencing considerations.
Appellant argues the prosecutor committed misconduct by suggesting that the jury consider punishment in its evaluation of his guilt or innocence. We disagree.
A prosecutor’s intemperate behavior violates the federal Constitution when it comprises a pattern so egregious that it renders the trial fundamentally unfair. Error under state law occurs if the prosecutor’s misconduct involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury to convict the defendant. (People v. Hill (1998) 17 Cal.4th 800, 819.)
A prosecutor has wide latitude during argument and may include reasonable inferences and deductions that can be drawn from the evidence. (People v. Hill, supra, 17 Cal.4th at p. 819.) “[W]hen 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.) In conducting this inquiry, we do not lightly infer that the jury drew the most damaging meaning from the prosecutor’s statements. (People v. Brown (2003) 31 Cal.4th 518, 553-554.)
In this case, there is nothing in the challenged remarks that the jury would have been reasonably likely to construe as a reference to sentencing. The court sustained defense counsel’s objection to the only arguable comment by the prosecutor and instructed the jury that its job was to assess the evidence to determine guilt or innocence and not to send messages to the community. The prosecutor’s remarks following this admonition were a fair comment on the evidence and reasonable inferences that could be derived from it. It is not reasonably likely that the jury would have understood the prosecutor’s remarks as referencing sentencing considerations. The People’s evidence showed that appellant terrorized the neighborhood with his dangerous driving and that appellant thought that he could do whatever he wanted without regard for the other people living in the area. It was this conduct that the prosecutor was referencing in his closing remarks.
In has been assumed for purposes of this discussion only that this prosecutorial misconduct claim was preserved for appellate review.
Appellant’s reliance on People v. Mendoza (1974) 37 Cal.App.3d 717 (Mendoza) is misplaced. There, defendant was charged with child molestation. The court found cumulative error from a series of improper statements by the prosecutor that unfairly aroused the jury’s sympathy in favor of the child victims. These improper statements included an appeal to get the defendant off the streets and a thinly veiled comment on the defendant’s failure to testify. The errors were compounded when the court gave an instruction indirectly implying that the jury could consider the defendant’s failure to testify as evidence to prove an element of the charged offense. (Id. at pp. 726-727.)
Mendoza is factually distinguishable. Here, the prosecutor did not make a series of improper statements during closing arguments and no cumulative error occurred. The court sustained defense counsel’s objection to the prosecutor’s sole impermissible remark during his closing arguments and the court immediately admonished the jury that its job was not to send messages but to weigh the evidence to determine guilt or innocence. Also, no Doyle error occurred because the court did not allow the jury to consider appellant’s postarrest silence as proof of guilt. Therefore, Mendoza does not advance appellant’s argument.
Accordingly, we reject appellant’s claim of prosecutorial misconduct and conclude that his constitutional due process rights were not infringed.
III. The vandalism conviction is supported by substantial evidence.
Section 594 prohibits the malicious damage or destruction of another’s real or personal property. In this context, malice or maliciously means “… a wish to vex, annoy, or injure another person, or an intent to do a wrongful act.…” (§ 7, subd. 4.) Appellant argues that there is insufficient evidence proving that he maliciously damaged Blinn’s truck. We are not convinced.
The standard of scrutiny applied to sufficiency of the evidence arguments is axiomatic:
“On appeal the critical inquiry is ‘to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.’ [Citation.] An appellate court ‘must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] In reviewing the evidence, our perspective favors the judgment.” (People v. Matian (1995) 35 Cal.App.4th 480, 483-484.)
The appellate court examines the entire record. It draws all reasonable inferences from the evidence to support the judgment and presumes the existence of every fact that the jury reasonably could deduce from the evidence. (People v. Johnson (1980) 26 Cal.3d 557, 578.) “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
In the absence of physical impossibility or inherent improbability, the testimony of a single witness, if believed by the trier of fact, is sufficient to support a disputed fact. (Evid. Code, § 411; People v. Allen (1985) 165 Cal.App.3d 616, 623.) Determinations about credibility of witnesses and the weight to be given their testimony are vested in the finder of fact. (People v. Galindo (1991) 229 Cal.App.3d 1529, 1537.) We do not reevaluate a witness’s credibility. (People v. Jones (1990) 51 Cal.3d 294, 314.)
Appellant contends that the evidence strongly suggests that he accidentally caused minor damage to the truck. He argues it is highly unlikely that he would have intentionally opened the truck’s door into a car that was owned by his grandmother. We are not persuaded. This was not a mere door ding, as appellant suggests. The truck’s door suffered serious damage. Appellant opened the door so forcefully that when it hit the blue vehicle, it bent and cracked. The door could not fully close because of the damage. Repairs cost $838.36. Furthermore, we do not find the fact that his grandmother owned the blue car to be particularly crucial. No evidence was presented at trial suggesting that appellant was concerned about his grandmother’s car and would have been careful to avoid damaging it. Appellant told Dougherty that he did not damage anyone’s vehicle; he did not tell the officer that he accidentally damaged the truck. In any event, this merely creates a conflict in the evidence. It does not definitively prove the absence of malice. The test is not whether there is a substantial conflict in the evidence, but whether the record contains substantial evidence supporting the judgment. “‘If this “substantial” evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment will be affirmed.’” (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.)
After examining the entire record, we find that it contains substantial evidence proving that appellant acted with malice. Blinn testified that appellant jumped out of his house through a window, ran over to the passenger side of the truck, banged on the top of the passenger door and unsuccessfully tried to open it. Then he ran to the driver’s side, reached in though the open window and pushed Blinn. Appellant was screaming at Blinn to get out of the truck and threatening to “get [Blinn’s] fucking ass.” Then appellant unlocked the driver’s side door and violently jerked it open. Appellant used so much force that when the door hit the side of the blue vehicle, the door bent and cracked. It may reasonably be inferred from this testimony that appellant possessed the required mental state. Therefore, the challenge to the sufficiency of the evidence fails.
During oral argument, appellant’s counsel briefly stated that CALCRIM No. 2900 did not address inadvertent damage as opposed to intentional damage. This contention was not presented in appellant’s written briefing. If appellant intended to assert this point as a separate claim, we reject it as untimely and unsupported by authority. As explained by this court in People v. Dixon (2007) 153 Cal.App.4th 985, “We cannot consider [appellant’s] contentions in the abstract. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 … [appellate court may consider contentions waived if not supported by sufficient argument or authority]; see also People v. Jones (1998) 17 Cal.4th 279, 304 … [defendant who presents claim perfunctorily and without supporting argument invites rejection in similar fashion].) It is also improper to raise issues for the first time in a reply brief or at oral argument. [Citation.]” (People v. Dixon, supra, 153 Cal.App.4th at p. 996, fn. omitted.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Wiseman, Acting P.J., Gomes, J.