Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. SWF011971, F. Paul Dickerson III, Judge.
Susanne C. Washington; and Anna M. Jauregui-Law, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster J.
A jury found defendant and appellant David Lee Midget (defendant) guilty of one count of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1) (count 1) and two counts of willful child endangerment in violation of Penal Code section 273a, subdivision (a) (counts 2 & 3). In addition, the jury found defendant guilty of one misdemeanor count of failing to stop at the scene of an accident in violation of Vehicle Code section 20002 (count 5). At sentencing, the trial court placed defendant on formal probation for four years, on condition, among others, that defendant serve 365 days in county jail.
The jury found defendant not guilty on count 4 which charged defendant with willfully throwing a substance at a vehicle in violation of Vehicle Code section 23110, subdivision (b).
In this appeal, defendant contends we must reverse the jury’s guilty verdicts first because at the end of their deliberations the bailiff had an ex parte communication with the jury regarding the verdict forms. Next, defendant contends we must reverse the judgment because the trial court did not discharge its mandatory duty under Penal Code section 1138 to correct the jury’s confusion regarding the verdict forms. As his third claim of error, defendant contends the prosecutor engaged in misconduct during closing argument and as a result the judgment must be reversed. Defendant contends as his fourth claim of error that we must reverse the judgment because he was denied his constitutional right to the effective assistance of counsel at trial. Defendant’s final two claims are directed at sentencing errors, namely, the trial court imposing as conditions of probation that defendant pay certain fees and costs, and also requiring defendant to reimburse the booking fee without first finding defendant has the ability to pay that fee.
With the exception of the sentencing errors, which the Attorney General concedes, we conclude defendant’s claims are meritless. Therefore we will affirm the jury’s determination of guilt and remand to the trial court to correct the sentencing errors.
FACTS
The pertinent facts are undisputed. On April 16, 2005, Alma Chavez was driving in her truck in Lake Elsinore. Chavez had her 10-year-old son and three-year-old daughter with her in the vehicle. While driving on Lincoln Street, a red Honda pulled up very closely behind Chavez’s truck. The driver of the Honda leaned out the driver’s side window and threw a can that hit the window of Chavez’s truck. Chavez had her son write down the license plate number of the Honda as it drove by Chavez and ran through a red light. Chavez pulled down a side street and telephoned her husband. Chavez then decided to drive to the Lake Elsinore police station.
While en route to the police station Chavez stopped at a stop sign on Lincoln Street. The driver of the red Honda, which was ahead of Chavez on Lincoln, put the vehicle in reverse and drove back to where Chavez waited at the stop sign in her truck. After waiting for the Honda to leave, Chavez drove off down Lincoln Street. Chavez came up behind the red Honda at Riverside Drive where the driver of that vehicle was signaling to turn right. When Chavez signaled to turn left, the driver of the Honda turned left in front of Chavez’s truck and made a hand gesture. Chavez dialed 911 on her cell phone.
Chavez drove behind the red Honda to the next intersection where the Honda sped off. When Chavez caught up with the Honda again, the driver turned left, stopped, and got out of the car. The driver of the Honda had something in his hand as he walked toward Chavez in her truck. Chavez backed up the truck and turned left. The next time Chavez looked in her rear view mirror, the red Honda was right behind her. Chavez then felt the Honda hit the rear side bumper of her truck. Chavez came to a stop after colliding with a guardrail.
Donald Iman saw the Honda hit Chavez’s truck after making frequent lane changes, one of which cut off Iman in his car as he was about to make a left turn. After hitting the truck, the Honda made a 90 degree turn to the left, ran off the road, and into a wetland area. Iman saw the driver get out of the Honda and run off into the woods. According to Iman, the driver was about six feet tall, slender, bald with hair on the sides of his head, and in his mid-forties, a description that fits defendant.
A deputy sheriff determined from the license plate that the Honda was registered to Jason Palmer. Palmer is defendant’s nephew and when contacted by a deputy sheriff said that the car belongs to defendant who is the only one who drives the car. The deputy prepared a photo lineup that included a photograph of defendant. Chavez and her son both immediately identified defendant in the photo lineup as the driver of the red Honda.
Defendant’s first trial resulted in a hung jury. The jury in the second trial, which is the subject of this appeal, found defendant guilty on four of the five counts charged in the second amended information. Additional facts will be recounted below as pertinent to the issues defendant raises on appeal.
DISCUSSION
1. BAILIFF’S COMMUNICATION WITH JURORS
In a hearing conducted without the jury present, the trial court informed counsel that after the jury had reached their verdicts, “my deputy told me not what the verdicts were, he doesn’t know, but apparently they signed all the verdict forms. My deputy explained to them they can’t sign all the verdict forms, that they need to sign the ones that, you know, this is what he’s guilty or not guilty of. [¶] So my deputy communicated to the foreperson, go through and cross out or indicate which one’s [sic] they’re not let [sic] selecting.” After the deputy confirmed that the trial court’s description was correct, the trial court continued, “[A]pparently that’s what they’ve done. I don’t know what it is. And so my proposal was we bring them in, I take a look at them, if they’re absolutely clear to me what their verdicts are obviously I have my clerk read the verdicts and then of course she asks each juror, ‘Is that your verdict, ’ and both [of] you indicated to me [in a unreported side bar discussion] that that was acceptable.” Both the prosecutor and defense counsel confirmed that they agreed with the proposed procedure.
The jury returned to the courtroom and the foreperson handed the verdicts to the bailiff. The trial court asked defendant to stand, and the clerk read the verdicts. The clerk then polled the jury collectively and individually with respect to the verdicts. Each juror confirmed the verdicts finding defendant guilty on counts 1, 2, 3, and 5, and not guilty on count 4.
Defendant contends the bailiff’s ex parte communication with the jury violated defendant’s constitutional rights to a fair trial, to representation by counsel, and trial by jury, guaranteed by the Fifth and Sixth Amendments. In defendant’s view, the error is structural and therefore we must reverse the judgment. We disagree.
The record discloses that the foreperson did not actually sign all the verdict forms, but only those pertinent to counts 2 and 3. We will not recount the particulars because we conclude defendant forfeited the claim by his failure to move for a mistrial or raise the constitutional issues in the trial court when the bailiff’s communication with the jury was revealed.
“By failing to object or move for a mistrial based on the ex parte communication, defendant waived the error. [Citations.] Although defendant argues the error impinged on his constitutional right to counsel and should thus be nonwaivable and reversible per se, both the United States Supreme Court (Rushen v. Spain (1983) 464 U.S. 114, 118-119) and [the California Supreme Court] ([People v.] Wright [(1990)] 52 Cal.3d [367, ] 403) have held that unauthorized ex parte communications with the jury need not result in reversal if the improper contact was harmless beyond a reasonable doubt.” (People v. Jennings (1991) 53 Cal.3d 334, 383-384 (Jennings).) “‘While denial of counsel at the critical stage of a criminal proceedings [sic] is not prejudicial as a matter of law, prejudice will be presumed if the denial may have affected the substantial rights of the accused. Only the most compelling showing to the contrary will overcome the presumption. The court must be able to declare a belief the denial of counsel was harmless beyond a reasonable doubt.’ [Citations.]” (Jennings, at p. 384.) “Moreover, it is questionable ‘whether a defendant should be permitted to sit back, await a jury verdict, and then assert error based on the court’s improper communication with the jury’ [citation], at least when the improper communication was relatively minor. [Citation.]” (Ibid.)
Defendant did not object in the trial court nor did he attempt to make a record of the circumstances under which the bailiff communicated with the jury. Defendant would have this court conclude that the jurors asked the bailiff a question about the verdict forms and instead of referring the question to the court, the bailiff answered the jury’s question. The record is silent and we will not speculate how the communication between the bailiff and the jury occurred. Had defendant raised the issue in the trial court and made a record by asking appropriate questions of the bailiff and jury foreperson we could resolve the issue on appeal. Because he did not do so, we must conclude defendant has forfeited the claim.
But even on the merits, defendant’s claim fails. The bailiff should not have spoken to the jury; that proposition is beyond dispute. However, the communication occurred after the jurors had finished their deliberations and concerned the limited question of how to correctly complete the verdict forms. The bailiff’s communication did not cause the jury to change their verdicts, as defendant claims. Instead, the bailiff correctly albeit improperly informed the jury to date and sign the verdict form that corresponded to the verdict they actually reached on each count. The foreperson had already either dated or dated and signed all of the possible verdict forms with respect to counts 2 and 3. As a result, the foreperson had to cross out the signatures on those incorrectly signed verdict forms. After returning their verdicts, the clerk polled the jurors individually and confirmed that the verdict on each count reflected the actual verdict of each juror. Under these circumstances the bailiff’s communication was harmless beyond a reasonable doubt. (Jennings, supra, 53 Cal.3d at p. 385.)
In a separate but related claim, defendant contends the trial court had a mandatory duty under Penal Code section 1138 to correct the jury’s confusion about the verdict forms. Section 1138 states, “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.”
All further statutory references are to the Penal Code unless otherwise indicated.
The jury did not ask the trial court for testimony or information on a point of law. As noted above in our discussion of defendant’s first claim of error, the record does not disclose how the bailiff learned about the jury’s problem with the verdict forms. But however the bailiff acquired that information, it was not communicated to the trial court until after the foreperson had corrected the verdict forms. These facts simply do not present an issue under Penal Code section 1138, defendant’s contrary claim notwithstanding.
Even if we were to conclude otherwise, a trial court’s violation of section 1138 requires reversal of a conviction only if it is shown to be prejudicial. (People v. Frye (1998) 18 Cal.4th 894, 1007, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390.) In arguing prejudice, defendant persists in his view that the jury was confused about the verdict forms and as a result of the bailiff’s instruction they changed their verdicts. The record does not support defendant’s claim. On this record we can only conclude that the jurors were confused about which verdict forms they needed to complete. The trial court determined by having the jury polled that they completed the forms that correctly reflected their verdicts on each count. Defendant has not demonstrated, if the trial court violated its duty under section 1138, that the error was prejudicial under either of the pertinent standards of review. (See People v. Frye, supra, 18 Cal.4th at p. 1008, which analyzes the issue under both state and federal standards of prejudice.)
3. PROSECUTORIAL MISCONDUCT
Defendant contends the prosecutor committed misconduct during closing argument by arguing there was no evidence to show that anyone other than defendant was the driver of the red Honda. Defendant contends that the prosecutor’s argument effectively shifted the burden of proof to defendant. We disagree.
A. Facts
The pertinent facts are that at the outset of his closing argument the prosecutor stated, “[A]ll the evidence really only points to one direction and one person. And only one person. [¶] Ask yourselves the question, ‘Wow, what evidence did I hear that someone else was the driver of that Honda? What other evidence did I hear? What evidence did I see that it was not the defendant?’ [¶] Put in another way, every piece of evidence that you got or that you saw or that you heard points to only one conclusion. Not a question mark. Actually, it points to no question at all.”
Consistent with his view that the evidence defendant was the driver of the Honda was uncontradicted, the prosecutor urged the jurors when listening to defense counsel’s closing argument to ask themselves where is the evidence that defendant was not the driver of the car. During a recess, defense counsel objected that the prosecutor’s “repeated requests to have me show the jury the evidence is a classic example of improper burden shifting.” Defense counsel then moved for a mistrial or to have the trial court give a curative instruction. The prosecutor responded that he was not arguing that defendant has to present evidence, but instead was urging the jurors when listening to the defense closing to ask themselves if there was evidence to support the defense claims. The trial court agreed with the prosecutor’s characterization, and found that the prosecutor’s argument did not have the effect of shifting the burden of proof to defendant. Therefore, the trial court found that a curative instruction was unnecessary and also denied defense counsel’s mistrial motion.
In his final closing argument, the prosecutor again urged the jurors to consider whether there was evidence to support the defense claim that defendant was not the driver. In particular the prosecutor stated, “And remember this: The defense can claim anything they want. But, as I told you earlier, where is the evidence, though? Where is the evidence that it was not the defendant?” “What does the evidence say? And that’s what you have to look at. Anyone can claim, ‘Hey it wasn’t me.’ But where is the evidence? What does the evidence say?”
B. Analysis
A prosecutor commits misconduct in closing argument by making statements that reasonably could be interpreted by the jury to suggest the prosecutor does not have the burden to prove each element of the crime beyond a reasonable doubt or that the defendant must present evidence to raise a reasonable doubt regarding his or her guilt. (See People v. Hill (1998) 17 Cal.4th 800, 831 [improper for prosecutor to argue “[t]here has to be some evidence on which to base a doubt”]; People v. Marshall (1996) 13 Cal.4th 799, 831 [“[I]t is improper for the prosecutor to misstate the law generally... and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements.”].)
The prosecutor did not engage in improper argument in this case. His argument was a permissible comment on the state of the evidence and on the failure of the defense to call logical witnesses. It is well settled that a prosecutor may comment in closing argument “on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses.” (People v. Brady (2010) 50 Cal.4th 547, 566.) Although the issue in Brady was whether the prosecutor committed so-called Griffin error by commenting directly or by inference on the defendant’s failure to testify at trial, the above noted principle is equally pertinent to defendant’s claim that the prosecutor’s argument effectively shifted the burden of proof to him to raise a reasonable doubt about his guilt. Because we conclude the prosecutor’s argument was not improper, we must reject this claim of error.
Griffin v. California (1965) 380 U.S. 609, 615, which holds that a criminal defendant’s Fifth Amendment right to remain silent is violated if the prosecutor comments on the defendant’s silence.
4. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends he was denied his Sixth Amendment right to the effective assistance of counsel at trial first because his trial attorney did not object to the bailiff’s communication with the jury and next because he failed to object when the prosecutor purportedly referred in closing argument to facts not presented in the evidence or mischaracterized evidence. Again, we disagree.
In order to establish a claim of ineffective assistance of counsel, defendant must “demonstrate (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. [Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in the outcome. [Citations.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other cases, Strickland v. Washington (1984) 466 U.S. 668.) An appellate court, in evaluating counsel’s conduct at trial, “must indulge a strong presumption that counsel’s acts were within the wide range of reasonable professional assistance. [Citation.] Thus, a defendant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. [Citation.]” (People v. Dennis, supra, at p. 541.)
A. Bailiff’s Communication with the Jury
Although trial counsel arguably should have objected to the bailiff’s communication with the jury, that oversight was not prejudicial. As previously discussed, the bailiff’s communication occurred after the jurors had finished their deliberations, and concerned the limited question of how to correctly complete the verdict forms. The bailiff’s direction was correct even if improper. Contrary to defendant’s assertion, the bailiff’s communication did not cause the jury to change their verdicts. The foreperson had already either dated or dated and signed all of the possible verdict forms with respect to counts 2 and 3. As a result, the foreperson had to cross out the signatures on those verdict forms that had mistakenly been signed and did not reflect the jury’s verdicts. After returning their verdicts, the clerk polled the jurors individually and confirmed that the verdict on each count reflected the actual verdict of each juror. In short, defendant has not demonstrated that the jury’s verdicts would have been more favorable to defendant if counsel had objected to the bailiff’s improper communication with the jury. Because defendant must show both deficient performance and resulting prejudice to prevail on his ineffective assistance of counsel claim, we must reject this initial claim.
B. Prosecutorial Misconduct
Defendant cites three instances of purported misconduct by the prosecutor to which defendant contends his trial attorney should have objected. First, defendant contends the prosecutor mischaracterized the evidence when he argued in closing that defendant was the only one who used the Honda, and the only one who had keys to the car. Defendant argues that defendant’s nephew testified that defendant was the “primary driver” but “he never testified that [defendant] was ‘the only’ driver” of the Honda. Defendant also notes that defendant’s nephew testified that as far as he knew no one else had a set of keys to the Honda.
The prosecutor’s argument, contrary to defendant’s view, does not mischaracterize the evidence. The prosecutor could argue as a reasonable inference from the nephew’s testimony that defendant was the only person who drove the Honda and the only person who had a set of keys to the vehicle. Because the prosecutor did not engage in misconduct, trial counsel had no reason to object to the argument and therefore trial counsel’s performance was not deficient.
Next, defendant contends the prosecutor mischaracterized the reliability of the victims’ identification of defendant as the driver of the red Honda. In particular, defendant takes issue with the prosecutor’s response in his final closing argument to defense counsel’s argument that Ms. Chavez and her son only had one opportunity to view the driver of the Honda—after the collision as defendant was fleeing from his car. The prosecutor argued in his final closing that “they had a clear view of him... at the moment during the incident when the defendant got out of his car, and was approaching them. And, if you remember, that was part of [Ms. Chavez’s] testimony is [sic] that she was looking right at him.” The prosecutor again argued in closing that Ms. Chavez had “a clear view” of defendant “[n]ot after the collision, but during the 20- to 30-minute incident. Especially a clear view when the defendant, when she was stopped, got out of his car and approached her.”
The prosecutor did not mischaracterize the evidence. Both Ms. Chavez and her son testified they had a clear view of defendant when during the incident, defendant stopped his car, got out of the vehicle, and walked toward them in their truck. That is precisely what the prosecutor argued in closing, defendant’s contrary characterization notwithstanding. Because the prosecutor did not mischaracterize the evidence, defense counsel had no reason to object, and therefore his failure to object does not constitute deficient performance.
Finally, defendant contends the prosecutor engaged in misconduct when he stated that in a prior proceeding Ms. Chavez and her son were 100 percent sure when they identified defendant as the driver of the car. Defendant contends that description is inaccurate because Ms. Chavez told the court in the prior proceeding that “on a scale of one to ten” she was “about a seven to eight in terms of being sure.” According to defendant, when asked about his identification of defendant in the prior proceeding, the son said he was “pretty sure, ” not “100 percent sure.”
We are not persuaded defendant’s characterization of the record is accurate, at least with respect to the son’s testimony. The son stated in this trial, not the prior proceeding, that he was “pretty sure” defendant was the person driving the car. But even if we were to assume defendant’s characterization of the witnesses’ testimony is correct and that the prosecutor misstated the evidence on this point, defendant has not overcome the presumption that trial counsel had a valid tactical reason for not objecting. (People v. Dennis, supra, 17 Cal.4th at p. 451.) More importantly defendant has not demonstrated prejudice as a result of trial counsel’s failure to object.
In short, and simply put, we conclude if trial counsel’s performance was deficient as a result of his failure to object to the prosecutor’s minor misstatement during closing argument, there is no reasonable probability that as a result of trial counsel’s failing, defendant would have obtained a more favorable result. (People v. Dennis, supra, 17 Cal.4th at pp. 540-541.)
As discussed above we conclude that no error occurred. Therefore, we will not address defendant’s claim that the cumulative effect of the errors is prejudicial and requires reversal.
5. COSTS AND FEES
Defendant contends that the trial court erred when it required defendant to pay the costs of probation supervision, the cost of the presentence probation report, and the court security fee as conditions of probation. The Attorney General correctly concedes that payment of probation related costs and the court security fee cannot be made conditions of probation. (See People v. Pacheco (2010) 187 Cal.App.4th 1392, 1401-1403.) Instead, those fees may be imposed as a separate order at the time of judgment. (Id. at p. 1403; People v. Hart (1998) 65 Cal.App.4th 902, 907.) We will direct the trial court to strike the noted fees and costs as conditions of probation, and to impose them pursuant to separate orders as part of the judgment of conviction after finding where appropriate that defendant has the ability to pay those fees. (See § 1203.1b, subd. (a) [presentence probation report and probation supervision fees require a finding of ability to pay].)
At the trial court’s request, defendant waived reading of the conditions of probation at his sentencing hearing. As a result, the terms and conditions of probation are only set out in the clerk’s minute order of the sentencing hearing.
Defendant also challenges the trial court’s imposition of a booking fee in the amount of $409.43 as a condition of probation because the trial court did not make a finding of defendant’s ability to pay. Again the Attorney General correctly concedes that although a booking fee is a proper condition of probation, it may only be imposed after the trial court makes a finding that defendant has the ability to pay that fee. (See Gov. Code, § 29550, subds. (c) & (d)(2).)
Defendant urges us to strike the booking fee. We decline to do so. Instead, we will remand to the trial court for the limited purpose of determining defendant’s ability to pay that fee.
DISPOSITION
The judgment is reversed with respect to the court security fee of $30 for each of defendant’s convictions which the trial court imposed pursuant to Penal Code section 1465.8; the presentence probation report fee not to exceed $318, imposed pursuant to Penal Code section 1203.1b; the costs of probation supervision not to exceed $336 or $2,544 if the level of supervision is increased, imposed pursuant to Penal Code section 1203.1b; and the booking fee of $409.43, imposed pursuant to Government Code section 29550, subdivision (c).
The matter is remanded to the trial court with directions to determine in accordance with Penal Code section 1203.1b and Government Code section 29550, respectively, defendant’s ability to pay the cost of the presentence probation report, the costs of probation supervision, and the booking fee. If the trial court determines on remand to impose the probation supervision fee, the presentence probation report fee, and the court security fee, the trial court shall do so as separate orders, not as conditions of probation.
The judgment is affirmed in all other respects.
We concur: Hollenhorst Acting P.J., King J.