Opinion
2d Crim. No. B226344 Super. Ct. No. NA081936-01
08-02-2011
THE PEOPLE, Plaintiff and Respondent, v. TEDDEST McKINNEY, Defendant and Appellant.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Theresa A. Patterson, Tannaz Kouhpainezhad, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County)
Teddest McKinney appeals a judgment following his conviction of possession of a firearm with a prior felony conviction (Pen. Code, § 12021.1); carrying a loaded firearm not registered to the defendant (§ 12031, subd. (a)(1)); and resisting, obstructing or delaying a peace officer (§ 148, subd. (a)). We conclude that McKinney has not shown that the prosecutor's remarks during closing argument constituted prejudicial prosecutorial misconduct. We affirm.
All statutory references are to the Penal Code.
FACTS
On April 12, 2009, Brenda Hart called the police. She saw a group of people "shouting at each other." They appeared to be "ready to fight." When the police arrived, they scattered. The police left the area.
Hart saw a man throw a gun into some bushes and leave. A few minutes later, she saw an African-American man cross the street, pick up that gun from the bushes, and get into a small white car.
Police Officer Francisco Ramirez was in his patrol car when he saw a vehicle matching the description that Hart provided. There were two women in that car and McKinney was sitting in the passenger seat. After the police stopped the vehicle, Police Officer Bradford Stein searched it and found a loaded revolver under the passenger seat.
When the police ordered McKinney to get into the patrol car, he refused and said, "Hell no." Officer Ramirez had to use force to get McKinney into the patrol car. But McKinney resisted, got up, and Ramirez had to use his baton to try to force him back into the police vehicle. Because McKinney continued to resist, Ramirez was only able to place him into the car "with the assistance of other officers."
Police Sergeant Julie Anderson testified that she arrived at the scene while police were detaining McKinney and the two female occupants in the car. Hart walked over to Anderson and said, "[Y]ou guys have the right guy."
McKinney did not testify and he called no witnesses.
DISCUSSION
Prosecutorial Misconduct
McKinney contends that during closing argument the prosecutor committed prejudicial misconduct requiring reversal of the judgment. We disagree.
"Prosecutorial misconduct is reversible under the federal Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.'" (People v. Guerra (2006) 37 Cal.4th 1067, 1124.) "'Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.'" (Ibid.) The prosecutor is given wide latitude in making vigorous arguments based on the evidence at trial. (People v. Hill (1998) 17 Cal.4th 800, 819.)
"We review prosecutorial remarks to determine whether there is a 'reasonable likelihood' that the jury misconstrued or misapplied the prosecutor's remarks." (People v. Sanders (1995) 11 Cal.4th 475, 526.)
Remarks Made in the Closing Argument About the Resisting Arrest Count
McKinney contends the prosecutor committed misconduct because she "improperly suggested the trial court had somehow sanctioned the police officers' conduct before the jury trial began."
The prosecutor told the jury: "Lastly, the defendant is being charged with resisting arrest. And resisting arrest, you have to show the person willfully resists a peace officer, that . . . was engaged in the performance of their duty. He knew or should have reasonably known that the person is an officer . . . . [¶] So the evidence proves that he is, in fact, guilty because we heard from the officers that he refused to get in the vehicle. It took three or four officers just to get him into the vehicle, and they were . . . at the time lawfully arresting him. [¶] We talk about lawful arrest. If some of you are going to go back and think, well, maybe they didn't have the right to arrest this guy at the time or detain him, that is not for you to decide or worry about. That is the judge's decision. The judges decide whether or not the arrest is lawful. So if some of you are back here thinking maybe the officer shouldn't have pulled him over, maybe there was not enough evidence or probable cause because you're watching a lot of television, let me say right now, that is not what you have to worry about. The lawfulness of the arrest has already been determined by the court, and you don't have to worry about that." (Italics added.)
Defense counsel: "Your Honor, I'm objecting to that."
The Court: "They will follow the instructions."
The prosecutor: "Let me correct that. As long as you believe that the peace officer is, in fact, a peace officer and he was engaging in his duties. There has been no evidence that contradicts the fact that the officers were in uniform and acting in the scope of their duties." (Italics added.)
McKinney claims the prosecutor's statement about the trial court deciding the "lawfulness of the arrest" diluted the presumption of innocence. This statement was not within the jury's province and could distract them. But the statement was brief, and the prosecutor did not suggest that the jury could ignore the elements of the offense or the court's instructions. Her statement did not diminish the presumption of innocence because "the trial court properly instructed the jury on the prosecutor's burden of proving every element of the charges beyond a reasonable doubt." (People v. Williams (2009) 170 Cal.App.4th 587, 635.) The Attorney General does not dispute that the prosecutor erred in making her statement. But she notes that, after a prompt defense objection, the prosecutor immediately corrected her remarks before the jury.
The prosecutor acknowledged her mistake and then argued on the relevant issue. In the presence of the jury, the trial court responded to the defense objection by stating, "They will follow the instructions." The defense did not request the trial court to give an admonishment, and the court did not explicitly direct jurors to disregard the prosecutor's statement. But the court's statement about following the instructions had the same effect by causing the prosecutor to acknowledge her error. Any reasonable juror would understand that the challenged statement should be disregarded.
Moreover, the trial court instructed the jury, "You must accept and follow the law as I state it to you, regardless of whether you agree with it. If anything concerning the law said by the attorneys in their argument. . . conflicts with my instructions on the law, you must follow my instructions." (Italics added.) It also said, "Statements made by the attorneys during the trial are not evidence." McKinney does not claim that the court's instructions on the law regarding the elements of the resisting arrest offense were incorrect. We presume the jury followed the court's instructions rather than relying on a brief extraneous remark by counsel. (People v. Boyette (2002) 29 Cal.4th 381, 436; see also People v. Najera (2006) 138 Cal.App.4th 212, 224 [where there is any conflict between counsel's argument and the court's instructions, courts presume the jury followed the instructions]; People v. Morales (2001) 25 Cal.4th 34, 47 ["we presume that the jury relied on the instructions, not the arguments, in convicting defendant"].) McKinney has made no showing that the jury relied on the prosecutor's remarks or was confused by them, or that jurors did not follow the court's instructions.
Moreover, given the overwhelming prosecution evidence on the resisting arrest offense, there is no reasonable probability of a different result had the prosecutor not made these remarks. (People v. Carter (2005) 36 Cal.4th 1215, 1264.)
A Statement Made in the Closing Argument about Possession of a Firearm
McKinney claims the prosecutor committed misconduct by misstating the law in closing argument while discussing the possession of the firearm offense.
The prosecutor told the jury: "There is a difference between ownership and possession. Ownership is not possession here. There is no requirements in the elements that a person touches or owns the item, in this case, the gun, under the law. That brief moment in time, getting the gun from the bushes and walking into that car, that is all that you need for possession. Felon, convicted felon cannot be close to a loaded weapon at all. That's the law."
Defense Counsel: "That misstates the law."
The Court: "Thank you. Argue the law, please."
The prosecutor: "The law says convicted felons cannot have a loaded weapon in their possession even for a brief moment of time, period." (Italics added.)
McKinney argues that the prosecutor's comment that felons cannot be near guns was not a correct statement of law regarding the possession of firearms by a felon offense and was inconsistent with the trial court's instructions. He contends it distorted the concept of constructive possession.
The trial court instructed jurors that the offense of firearm possession by a person convicted of a prior felony involved "two kinds of possession: actual possession and constructive possession. [¶] 'Actual possession' requires that a person knowingly exercise direct physical control over a thing. [¶] 'Constructive possession' does not require actual possession, but does require that a person knowingly exercise control over or the right to control a thing, either directly or through another person or persons."
The Attorney General essentially concedes that the prosecutor's remarks about prohibiting felons from being near guns are not consistent with the instruction on constructive possession. But she claims jurors would not be confused because the prosecutor promptly corrected her remarks after the court's direction that she "argue the law." We agree.
Any reasonable juror from this sequence of events would understand that the prosecutor had erred in light of the defense objection that she misstated the law and the trial court's direction that she "argue the law." Without evidence to the contrary, we must also presume that the jury followed the court's instructions on the elements of the offense, and not counsel's inconsistent remarks. (People v. Najera, supra, 138 Cal.App.4th at p. 224; People v. Morales, supra, 25 Cal.4th at p. 47 [courts presume "'the jury treated the court's instructions as statements of law, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade'"].) Jurors must follow the court's instructions; they may, however, "'totally disregard all the arguments of counsel.'" (Morales, at p. 47.) McKinney does not claim the instructions were incorrect.
Moreover, the prosecution's theory was based on McKinney's actual possession of the weapon. In addition to finding McKinney guilty of possession of the weapon by a felon, the jury also found him guilty of the offense of carrying it. (§ 12031, subd. (a)(1).) The trial court instructed jurors that for the offense of carrying a loaded firearm they had to find that the defendant "carried a loaded firearm on his person or in a vehicle." The court did not give any constructive possession element instruction for this offense because it involves carrying the weapon. (People v. Overturf (1976) 64 Cal.App.3d. Supp.1, 6.) The conviction on carrying the gun undermines McKinney's suggestion that jurors were not convinced he held the gun and simply relied on the prosecutor's statement that being close to it was sufficient for possession. Given the strength of the prosecution's case, there is no reasonable probability of a different result had the prosecutor not made the remarks. (People v. Carter, supra, 36 Cal.4th at p. 1264.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
PERREN, J.
Tomson T. Ong, Judge
Superior Court County of Los Angeles
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Theresa A. Patterson, Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.