Opinion
F072577
02-07-2017
THE PEOPLE, Plaintiff and Respondent, v. JERRY LEWIS MASON, Defendant and Appellant.
William W. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 1487234)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Dawna F. Reeves, Judge. William W. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Detjen, J. and Smith, J.
-ooOoo-
A jury convicted Jerry Lewis Mason of spousal abuse resulting in a traumatic condition and two misdemeanor counts of possession of illegal substances. He argues reversal is required because defense counsel was ineffective at trial by failing to object to some of the prosecutor's rebuttal argument. Concluding Mason's argument lacks merit, we affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Information
The information charged Mason with spousal abuse resulting in a traumatic condition in violation of Penal Code section 273.5, subdivision (a). Count two charged Mason with misdemeanor possession of heroin (Health & Saf. Code, § 11350, subd. (a)), and count three charged him with misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)).
All statutory references are to the Penal Code unless otherwise stated.
The information alleged as enhancements to count one (1) Mason had suffered two prior convictions for violation section 273.5 within the previous seven years within the meaning of section 273.5, subdivision (f)(1); (2) Mason had suffered a prior conviction that constituted a strike within the meaning of section 667, subdivisions (b)-(i); and (3) Mason had served five prior prison terms within the meaning of section 667.5, subdivision (b).
Testimony
Dorothy Mason was married to Mason at the time of trial. She testified that on May 4, 2015, two women approached her while she was sitting in her vehicle in the parking lot of a fast food restaurant. As she exited her vehicle, one of the women asked her for money. When Dorothy refused to give her any money, the woman attacked her.
We will refer to Mrs. Mason as Dorothy to avoid confusion with defendant. No disrespect is intended. --------
Later that day, Dorothy met with Mason to pay bills. Dorothy was upset because she had been calling Mason to tell him about the attack, but he did not answer his phone. The two then began arguing about paying the bills. Eventually Dorothy dropped Mason off, but she could not recall where. Dorothy first realized she had sustained injuries to her face when her mother, whom she had gone to visit, commented about bruising. Dorothy left her mother's house, but returned later that day, when she spoke to her mother's neighbor, Deborah Hoyopaturbbi. Dorothy told Hoyopaturbbi she had got into a fight when Hoyopaturbbi commented on the bruises to Dorothy's face. At some point around this time, Dorothy called the police.
Dorothy met with the police at another location and told them about the injuries to her face. She told the police Mason had hit her. She explained at trial that she had been fighting with Mason over money. She was upset and wanted to get Mason into trouble with the police, so she lied and told them Mason had caused the injuries to her face.
Specifically, Dorothy admitted she told the responding officer that she was in the parking lot of a fast food restaurant when Mason entered her vehicle and sat in the passenger seat. Mason became angry and punched Dorothy in the face four times. She did not tell the officer two women attacked her. Dorothy also admitted the responding officer took pictures of her injuries. The pictures were admitted into evidence.
Dorothy filed a request to have the charges dropped two days after she was injured. Dorothy explained she turned in the document because she realized Mason was charged with a crime he did not commit.
Dorothy also testified to four other incidents of domestic violence that were reported to the police. Two she admitted were true, but the other two she claimed either did not occur or occurred in a way different than what she told the responding officers. Dorothy filed a request to have the charges dropped in three of the cases.
Hoyopaturbbi testified she lives next door to Dorothy's mother. She did not personally witness an incident involving Dorothy and Mason on May 4, 2015. She spoke with an officer about two weeks later, but did not tell the officer that Dorothy and Mason fight all the time. Dorothy told Hoyopaturbbi on the day in question that she and her husband got into a fight.
Modesto Police Officer Russell Mertens met with Dorothy on May 4, 2015. Dorothy had visible bruising around her eye and a laceration on her face. Dorothy told Mertens that Mason had hit her four times in the face. Dorothy said she was in the parking lot of a fast food restaurant when Mason entered her vehicle. Mason was upset because Dorothy was supposed to have picked him up earlier, and because she was on her phone when he entered the vehicle. Mason then struck Dorothy in the face. Mason fled from the vehicle when a passerby noticed his actions. Dorothy drove to her mother's house.
On cross-examination, Mertens stated he recorded his interview with Dorothy using the personal recording system all Modesto police officers carry with them.
Modesto Police Department Detective Stephen Anderson interviewed Hoyopaturbbi after the incident. Hoyopaturbbi told Anderson she did not observe the fight, but Dorothy told her she and Mason had a fight in her vehicle, and Mason punched Dorothy. Hoyopaturbbi also stated that Dorothy and Mason fight all the time, and Dorothy makes excuses for him.
Modesto Police Officer Tyler Caldwell arrested Mason on the day in question. Caldwell located two packages that he believed contained usable amounts of methamphetamine and black tar heroin when he searched Mason. The parties stipulated the substances were tested by the Department of Justice, the testing confirmed the substances contained methamphetamine and heroin, and both quantities were a usable amount.
On cross-examination Caldwell testified he recorded the arrest using the department issued personal recording device.
Finally, the prosecution entered into evidence recordings of various conversations between Mason and Dorothy made while Mason was incarcerated. Mason did not admit in these calls that he injured Dorothy. However, Dorothy made several comments suggesting Mason was in jail because of his actions, although not specifying what actions. Most of the conversations could be construed as Mason badgering Dorothy to get him out on bail and to have the charges dropped. Mason also admitted when he was arrested he had illegal items on his person.
Verdict and Sentencing
The jury found Mason guilty as charged in the information. The trial court found each of the prior conviction allegations true. Mason was sentenced to the midterm of four years for the abuse count, doubled because of the strike prior, plus five years for the five prior prison sentence enhancements. A consecutive sentence of 75 days was imposed for each misdemeanor controlled substance count. The total prison term was 13 years plus 150 days.
DISCUSSION
Mason contends he received ineffective assistance of counsel because he failed to object when the prosecutor made objectionable statements during her rebuttal argument.
The prosecutor's closing argument, as related to the spousal abuse charge, argued Dorothy's statement to the police officers was truthful, and Dorothy fabricated her trial testimony. She also argued the recorded phone conversations between Mason and Dorothy, and the history of domestic violence between the two, led to the inference that Mason committed the charged crime.
During his closing argument, defense counsel asserted, in essence, the jury must believe Dorothy's trial testimony because that is the only statement she gave in which she had sworn to tell the truth. He then turned to the investigation.
"So those are the five pillars of evidence. We have seen there [sic] those five pillars are built on some quicksand. Just as important about - just as
important as what you have heard is what you didn't hear or didn't see. On the day of May 4th we have videos by Officer Mertens and Officer Caldwell. You didn't see that. I don't know. You never saw if there were any photos taken or there weren't photos taken of Jerry's hands that could show bruising or bleeding or anything to suggest that he punched someone. Why not?
"You didn't hear any 9-1-1 calls from that day. Why not? There is no attempt at finding this mystery witness. Why not? There is no attempt of getting surveillance from [the fast food restaurant]. Why not? There is no physical evidence at all from that day. Why not?
"Now to borrow the government's cookie analogy, it is possible that the reason you don't see or hear about any of this stuff is because it is so good they felt it was unfair to show it, unfair to Mr. Mason to present it in front of you. That's possible. But, it's not reasonable, ladies and gentlemen.
"What is reasonable is that they have nothing to show you the day of May 4th. Nothing to be able to prove the case at all, let alone beyond a reasonable doubt. The government hopes that you will dislike Jerry enough to convict him based on his past and the appalling way he treated Dorothy on the phone."
In response to defense counsel's argument, the prosecutor began her rebuttal remarks as follows.
"I'm going to address some of the points made by [defense counsel]. So first let's talk about the 9-1-1 calls, videos and lack of photos of the defendant's hands. At the beginning of this case during jury selection, we talked to you about the CSI effect that just because videos or some DNA or some forensic evidence isn't presented to you it's sufficient that you have witness's testimony because witness's testimony is evidence.
"Now, in this case you heard the officers testify that they made a video while they were - well, let's start with Officer Mertens. He made a video while he was speaking to Mrs. Mason. And Officer Caldwell testified he had the video going as he arrested Mr. Mason later that evening.
"If they testified to anything that was inconsistent with those videos, the defense could have put those videos on. The defense has those videos. However, the officer's testimony was consistent with what was shown on the video. So there is no need to put on the video when you have already been given the information that is uncontradicted.
"The officer testified to what he was told, and what he was told was the same thing that was on the video. Same thing with the 9-1-1 call. If the officer had testified to something that was inconsistent as to what was said on the 9-1-1 call that there was a call for a domestic violence, the defense had the 9-1-1 call, and they could have played it for you if the officer was mistaken or lying. But, the officer told you truthfully what was on that call, so there was no need to play that call."
Mason argues the prosecutor's argument was improper for three reasons. First, Mason argues the prosecutor's comments relied on evidence not presented to the jury, specifically that defense counsel had in his possession the videos and 9-1-1 calls in question. Second, the prosecutor erred by arguing these items would have supported the prosecution's witnesses. Third, Mason argues the prosecutor vouched for its witnesses by asserting the witnesses' testimony was consistent with what was contained in the videos and the 9-1-1 call.
Ineffective Assistance of Counsel
A defendant is entitled to a new trial if he received ineffective assistance of counsel at trial. (People v. Lagunas (1994) 8 Cal.4th 1030, 1036.)
"In order to establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel's performance was deficient and that the defendant suffered prejudice as a result of such deficient performance. [Citation.] To demonstrate deficient performance, defendant bears the burden of showing that counsel's performance 'fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citation.] To demonstrate prejudice, defendant bears the burden of showing a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. [Citation.]
"As we have observed in the past, certain practical constraints make it more difficult to address ineffective assistance claims on direct appeal rather than in the context of a habeas corpus proceeding. [Citations.] The record on appeal may not explain why counsel chose to act as he or she did. Under those circumstances, a reviewing court has no basis on which to determine whether counsel had a legitimate reason for making a particular decision, or whether counsel's actions or failure to take certain actions were objectively unreasonable. [Citation.]
"Moreover, we begin with the presumption that counsel's actions fall within the broad range of reasonableness, and afford 'great deference to counsel's tactical decisions.' [Citation.] Accordingly, we have characterized defendant's burden as 'difficult to carry on direct appeal,' as a reviewing court will reverse a conviction based on ineffective assistance of counsel on direct appeal only if there is affirmative evidence that counsel had 'no rational tactical purpose' for an action or omission." (People v. Mickel (2016) ___ Cal.5th ___ (2016 WL 7335733 at pp. 7-8).)
"Generally, failure to make objections is a matter of trial tactics as to which we will not exercise judicial hindsight. [Citation.] '[C]ounsel's conduct should not be judged by appellate courts in the harsh light of hindsight ... and except in rare cases, an appellate court should not attempt to second-guess trial counsel.' [Citation.] 'It is not sufficient to allege merely that the attorney's tactics were poor, or that the case might have been handled more effectively ... Rather, the defendant must affirmatively show that the omissions of defense counsel involved a critical issue, and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics.' " (People v. Lanphear (1980) 26 Cal.3d 814, 828-829, overruled on other grounds in People v. McKinnon (2011) 52 Cal.4th 610, 643.)
Prosecutorial Error
The standards governing review of misconduct claims are settled. "A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such ' "unfairness as to make the resulting conviction a denial of due process.' " [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial." (People v. Alfaro (2007) 41 Cal.4th 1277, 1328.) "In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review." (Ibid.) When a claim of misconduct is based on the prosecutor's comments 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. Smithey (1999) 20 Cal.4th 936, 960, quoting People v. Samayoa (1997) 15 Cal.4th 795, 841.)
"Regarding the scope of permissible prosecutorial argument, we recently noted ' " 'a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.' [Citation.] 'A prosecutor may "vigorously argue his case and is not limited to 'Chesterfieldian politeness' " [citation], and he may "use appropriate epithets ...." ' " ' " (People v. Hill (1988) 17 Cal.4th 800, 819 (Hill).)
Referring to facts not entered into evidence is " 'clearly ... misconduct' [citation], because such statements 'tend[] to make the prosecutor his own witness—offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, "although worthless as a matter of law, can be 'dynamite' to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence." [Citations.]' [Citation.] 'Statements of supposed facts not in evidence ... are a highly prejudicial form of misconduct, and a frequent basis for reversal.' " (Hill, supra, 17 Cal.4th at pp. 827-828.)
Vouching for witnesses is similarly improper. "A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness's truthfulness at trial. [Citation.] However, so long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the 'facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,' her comments cannot be characterized as improper vouching." (People v. Frye (1998) 18 Cal.4th 894, 871, disapproved of on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 419-421.)
Analysis
We must conduct a two-part analysis to resolve Mason's argument. First, we must determine if the prosecutor erred in her closing argument. Second, if the prosecutor erred, we must determine if defense counsel was ineffective. Mason fails to establish any prosecutorial error, and fails to establish either prong of ineffective assistance of counsel.
Prosecutorial Error
The first ground of asserted error relates to the prosecutor's comment that defense counsel could have introduced the videos or the 9-1-1 tape. Mason argues that the record does not reflect that defense counsel had been provided these items in discovery. While it is almost certain that these items were produced during discovery, it is absolutely certain that if these items existed then defense counsel could have obtained them. Therefore, the prosecutor's reference to defense counsel's possession of these items did not constitute error.
This leads to Mason's second argument and the point of the prosecutor's argument. If these items provided any exonerating evidence, or had a tendency to impeach a witness, it is logical to infer that defense counsel would have introduced them during the trial. Because defense counsel did not introduce them at trial, it is also logical to infer that these items did not have any value as exonerating or impeaching evidence. In other words, it is logical to infer that since defense counsel did not introduce the videos or the 9-1-1 call, then the testimony of the witnesses must have been consistent with these items. This was the point the prosecutor was trying to make when she said the videos and the 9-1-1 calls were consistent with the officers' testimony.
While the prosecutor perhaps could have chosen her words more carefully, her point was valid. It is safe to assume that Mason would not object if the prosecutor limited her comments to the fact that if the items had some beneficial value to Mason, then defense counsel would have introduced them into evidence. It is also logical to infer that since defense counsel did not introduce them into evidence, then the testimony at trial was consistent with the videos and 9-1-1 call. Since this inference is so compelling, the prosecutor's choice of words simply does not give this argument merit. We conclude no error occurred, and reject Mason's strained interpretation of the prosecutor's argument.
Mason's third argument asserts the prosecutor vouched for the witnesses when she stated the officers' testimony must have been consistent with the videos and 9-1-1 call. This is not vouching. The prosecutor was relying on the record to draw this conclusion. The officers' testimony was not contradicted at trial. And, as explained above, it is logical to infer that if the videos or the 9-1-1 call had any exonerating or impeaching value, then defense counsel would have introduced the items into evidence. Therefore, by asserting the testimony at trial must have been consistent with the videos and the 9-1-1 call, the prosecutor was merely verbalizing a logical inference. She was not vouching for a witness's credibility. Accordingly, no error occurred.
Finally, we turn to the question of ineffective assistance of counsel. Since we reject Mason's claim the prosecutor erred in closing argument, Mason's claim of ineffective assistance of counsel for failing to object must fail. (People v. Coffman (2004) 34 Cal.4th 1, 119-120.) Even if we assume, arguendo, the prosecutor erred in closing argument, we would reject the claim of ineffective assistance of counsel because he cannot establish either prong of the claim.
To prove ineffective assistance of counsel, Mason would have to show defense counsel's performance was deficient and he suffered prejudice. The alleged deficiency is the failure to object to the prosecutor's comments during closing argument. Yet, defense counsel opened the door for such argument when he questioned why these items were not introduced into evidence. The prosecutor predictably responded to this argument with, we repeat, the logical inference that since defense counsel did not introduce the videos and 9-1-1 call then these items must not have had any exculpatory or impeaching value. Since defense counsel asked in closing argument why these items were not introduced into evidence, he may have concluded he would have antagonized the jury had he objected to the prosecutor's argument. Therefore, even if the prosecutor's argument was possibly objectionable, defense counsel may have had a valid tactical reason for not objecting.
While each of the above points provide ample grounds for affirming the judgment, perhaps the strongest argument is that Mason cannot establish any prejudice as a result of the prosecutor's argument. Beginning with the video of the interview with Dorothy, the record reveals Dorothy testified that she told the police officer that Mason had punched her in the face. There is no evidence in the record that Dorothy did not make such statements. Instead, Dorothy testified she lied when she made the statements to the investigating officer. Therefore, since it is undisputed Dorothy made such statements to the police, the reference to the video confirming the officer's statement could not possibly have had any effect on the verdict.
Similarly, the video from Mason's arrest could not have caused him any prejudice. It was when he was arrested that the police discovered the methamphetamine and heroin he possessed. However, Mason admitted in his phone conversations he possessed the illegal drugs. Therefore, there is no possibility that the verdicts on the two possession charges were influenced by the prosecutor's assertion the video supported the officer's testimony.
Finally, the calls to the emergency operator had virtually no evidentiary value except to explain the actions of the officers investigating the reports of crimes. The argument that the officers' testimony was consistent with the calls was not prejudicial.
In other words, the videos and the 9-1-1 call each related to collateral issues which were not in dispute.
Mason argues the prosecution gained an unfair advantage by telling the jury the videos and the call to the emergency operator support the prosecution's case. Absent this unfair advantage, according to Mason, there is a reasonable likelihood he would have obtained a better outcome. Mason points out no one saw Mason strike Dorothy, Dorothy's injuries were consistent with her claim she was attacked by someone other than Mason, and the lack of physical evidence to prove Mason's guilt. Mason also argues it was only the officer's testimony that proved he possessed the heroin and methamphetamine.
Mason's argument ignores the only issue in the case. There was no issue about whether Mason possessed the methamphetamine and heroin; the officer testified to it, and Mason admitted it in his calls with Dorothy. Nor was the issue whether Dorothy told the officer that Mason struck her, or whether the evidence established that Dorothy lied at some point in time. The only issue in this case was at what point Dorothy lied - when she reported the abuse to the police, or when she testified at trial.
When properly focused, it is clear Mason's arguments are misguided. The videos and 9-1-1 call related to collateral issues which were not in dispute and which could not have influenced the jury. Accordingly, there is no possibility that Mason would have obtained a better result had defense counsel successfully objected to the prosecutor's rebuttal argument.
DISPOSITION
The judgment is affirmed.