Opinion
Received for posting 4/13/09
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05-060197-1
Ruvolo, P.J.
I. INTRODUCTION
Louis Murry appeals from his conviction of multiple charges including, among others, attempted kidnapping in violation of Penal Code section 207, subdivision (a), and battery against his putative spouse in violation of Penal Code section 273.5, subdivision (a). He argues the prosecutor committed misconduct based on two separate statements made during closing argument. We conclude that, as to one statement, the issue has been waived by appellant’s failure to request an admonition after his objection to the statement was sustained. As to the other statement, assuming it was misconduct, we conclude appellant has shown no resulting prejudice. The conviction is affirmed.
II. PROCEDURAL BACKGROUND
Appellant was charged with felony kidnapping of Lisa Alberts (Pen. Code, § 207, subd. (a)), two counts of felony battery on Lisa Alberts as a putative spouse (Pen. Code, § 273.5, subd. (a)), and five counts of felony assault on Lucy Gerhart, Richard Hillman, Destiny Mercurio (one count each), and Lisa Alberts (two counts) (Pen. Code, § 245, subd. (a)(1)). Appellant pled not guilty to all of the charges. An eight-day trial ensued. At the close of the prosecution’s presentation of evidence, appellant moved to dismiss the charge of felony assault on Destiny Mercurio, which motion the court granted. Appellant was ultimately convicted of (1) the lesser included offense of felony attempted kidnapping of Lisa Alberts, (2) one count of felony battery on Lisa Alberts as a putative spouse, (3) the lesser included offense of misdemeanor assault on Lisa Alberts, and (4) felony assault on Lucy Gerhart. In addition to having been found not guilty of one count of felony assault on Lisa Alberts, and one count of felony battery on Lisa Alberts as a putative spouse, appellant was found not guilty of assault on Richard Hillman. The court sentenced appellant to an aggregate of five years in state prison, and a nominal restitution fine. This appeal followed.
III. FACTUAL BACKGROUND
Appellant and Lucy Alberts met in approximately April 2002. Shortly thereafter they began a romantic relationship and moved in together. At trial, and presumably during the relationship, Alberts called appellant Mac, short for Machiavelli, Alberts’s son called appellant Machiavelli, and appellant referred to himself as Machiavelli. Alberts and appellant dated off and on for three or four years. Alberts testified that their entire relationship was a “roller coaster”—that appellant was sometimes violent, but that the two would then reconcile. Alberts testified that appellant had assaulted her four or five times prior to November 26, 2005. Appellant unequivocally testified that he did not hit Alberts on any of the specific dates she alleged.
A. Count Eight (Felony Assault on Lisa Alberts)
Alberts testified that on December 7, 2002, appellant pushed her through a glass table, causing her to suffer a cut on her wrist that needed stitches. Alberts could not remember what the fight was about, or what happened prior to the pushing. Alberts’s injury was treated at the hospital, where the police were called due to the hospital’s suspicion as to the cause of the injury. Alberts refused to formally report appellant because she was frightened of him and instead told the police that she had cut herself.
Nikia Jones, appellant’s sister, lived in the same apartment complex as Alberts when this incident occurred. According to Jones, appellant did not arrive home that evening until 3:00 a.m. Alberts became angry and grabbed appellant while at the same time demanding that he leave. When appellant said he would, Alberts hit him then grabbed him, attempting to stop him from leaving. Alberts slipped and fell into the glass table. Appellant then left. Alberts refused Jones’s offer to take her to the hospital and Jones went home. According to Jones, appellant did not touch Alberts and was merely trying to leave.
Appellant testified that when he arrived home after 3:00 a.m., Alberts was angry that he had arrived so late and told him to leave. Appellant told Jones, who was also present, that he was merely going to get some clothes and asked Jones to restrain Alberts. Alberts swung at appellant a couple of times and when he broke free he got his clothes and left. Appellant never saw Alberts fall or her resulting injury.
The jury acquitted appellant of this charge.
B. Count Seven (Felony battery of Lisa Alberts, a putative spouse)
Alberts testified that in September or October of 2005, in reaction to Alberts rifling through his backpack, appellant punched her causing her nose to split open and two black eyes. She claimed she was looking for a picture in appellant’s backpack. When appellant caught her, the two argued and appellant eventually grabbed Alberts by the arms and pushed her to the floor. When Alberts stood up, he punched her. She fell to the floor again, and appellant held her throat with his hands. As soon as appellant released her, Alberts left. Alberts testified that she did not report this incident to the police because she was frightened of appellant.
Alberts’s roommate at the time, Lucy Gerhart, testified that when Alberts arrived home that evening, Gerhart observed Alberts with a bloody nose and swelling around her eyes.
Appellant testified that he did not punch Alberts. Appellant’s friend woke him after he had fallen asleep on the couch to tell him Alberts was looking through his backpack. Appellant asked Alberts to leave and she left. Appellant never saw Alberts with a bloody nose that night.
Appellant was acquitted of this charge.
C. Counts One Through Six (Kidnapping of Lisa Alberts, Assault and Battery of Lisa Alberts, and Assault on Lucy Gerhart, Destiny Mercurio and Richard Hillman)
1. Alberts’s Testimony
In the summer of 2005, Alberts moved to a two-story apartment complex on Sycamore Avenue in Antioch. The apartment was part of a gated complex surrounded by six-foot tall cement walls. Alberts thought it would be a safe environment where appellant could not reach her. Alberts lived with her son, eight years old at the time, and roommates Lucy Gerhart and Destiny Mercurio.
Alberts testified that as of November 26, 2005, she and appellant were about to part ways permanently. At about midnight, Alberts and appellant argued over the phone and appellant told Alberts he would come to her apartment and that she was “living on borrowed time.” At about 4:00 a.m., a friend of one of Alberts’s roommates told her that appellant was outside.
Alberts took appellant to her bedroom for some privacy, where Alberts’s son was sleeping. Appellant vacillated between angry and pleasant. Appellant accused Alberts of having sex with her roommates’ male friends, who were at that time socializing in Alberts’s living room. When Alberts’s cell phone rang, appellant grabbed it. The two fought. Appellant attempted to kiss Alberts’s son, but because of the status of Alberts’s and appellant’s relationship, Alberts told him not to. Appellant became angry and threw Alberts onto the floor. Alberts asked that they leave the bedroom so as not to fight in front of her son. Appellant complied by grabbing Alberts’s hair and leading her through the apartment to the front door. On the way, appellant told the men in the living room to “stay out of it.”
Outside, either appellant punched Alberts or simply continued to pull her hair, causing Alberts to fall to the ground just outside her front door, hitting her head on the cement. Despite Alberts’s calling for help, no one from inside the apartment assisted her. Alberts persistently attempted to stand, but she was woozy from hitting her head on the ground and appellant continued to grab her hair. Appellant kicked Alberts “over and over and over” and dragged her down the sidewalk, and through the bushes. He hit her in her stomach, arms, and face 10 to 12 times.
Alberts’s roommates soon arrived. They first unsuccessfully pleaded with appellant to stop. Gerhart then attempted to physically remove appellant from Alberts, but appellant grabbed Gerhart, holding her between his legs and punched her in the face.
Appellant dragged Alberts by her hair down a walkway. Alberts was able to stand a few times, but fell each time, and was also able to grab on to bushes, but the bushes ripped, not being strong enough to hold appellant back.
Richard Hillmann, a neighbor, came down the walkway with a golf club. Appellant struck him in the face and took his golf club.
Appellant continued to drag Alberts toward the complex walls. Alberts found herself with her back to the wall and appellant facing her. Appellant picked Alberts up and sat her on the cement wall. Alberts felt something enter her vagina and appellant accused her of cheating on him. Appellant then pushed Alberts over the wall. Alberts saw a light, and heard officers ordering appellant to the ground.
Alberts had mass bruising and drag injuries on much of her body. At the hospital, her pajama pants and sweatshirt were missing, her shirt torn, and her socks muddy and ripped. She was sore for about a month.
2. Gerhart’s Testimony
Gerhart and Alberts had been roommates for about two or three months. On November 26, 2005, Gerhart and Mercurio left the apartment to go to a store at about 3:00 a.m. When they returned at about 4:00 a.m., Gerhart saw appellant was holding Alberts to the ground hitting her repeatedly. Alberts was not fighting back. Gerhart attempted to push appellant away from Alberts, but the appellant saw her coming and pushed her first. When appellant turned toward Mercurio, Gerhart tried to jump on appellant’s back. Appellant threw Gerhart off his back and threw her face down into the bushes. When she turned around he punched her in the face, resulting in a black eye. At some point, Mercurio grabbed Gerhart’s hand and led her into the apartment. Inside the apartment, Mercurio and Gerhart could not find a phone, and therefore could not call the police.
3. Testimony of Richard Hillmann and Jennifer Findley
Richard Hillman and Jennifer Findley lived on the second floor of Alberts’s apartment complex. At about 4:00 a.m. on November 26, both were awakened by screaming. Hillmann and Findley immediately ran downstairs, Hillman armed with a golf club. Both testified that they observed Alberts in a “fetal position” with her hands over her head trying to protect herself. Hillmann observed appellant repeatedly punching Alberts. Hillmann told appellant that appellant should leave, and appellant refused, then punched Hillmann in the face causing him to suffer a bloody nose. As Hillmann prepared to hit appellant with his golf club, appellant reached behind his waistband as if he had a gun. Hillmann and Findley quickly returned upstairs. From his balcony, Hillmann observed something black and square in appellant’s hand and watched as appellant dragged Alberts by her hair toward the wall of the apartment complex. In the meantime, from inside the apartment, Findley called 911.
4. Testimony of Alberts’s Son
At the time of trial, Alberts’s son was 10 years old. On November 26, 2005, he was sleeping in the bedroom he and his mother shared. Although he could not see appellant and Alberts, he heard them arguing, and then the bedroom door slam. He went to the front door where he heard a glass planter break outside. When he opened the front door he saw appellant hitting his mother, first near the front door and then in the bushes. He saw appellant hit Gerhart, who then fell to the ground. He watched as Richard Hillmann came downstairs with a golf club, and saw him attempt to hit appellant with it. But before he could, appellant hit Hillmann. Alberts’s son also watched as appellant dragged Alberts by her hair or shirt toward the cement wall and try to push her over it.
5. Testimony of Corporal William Dee and Officer James Stenger
Corporal William Dee of the Antioch Police Department was dispatched to Alberts’s apartment on November 26, 2005. He and three other officers met down the road before making their way to the front gate of the apartment complex on foot. On the way to the front gate, he heard a thump and a woman sobbing, and noticed in the dark a woman’s outline on the ground on his side of the wall. The police officers stayed silent hoping the suspect would follow the woman over the wall. When he did, one officer turned on his flashlight and the officers arrested the man, later identified as appellant.
Officer James Stenger also responded to the Sycamore call. He observed the suspect being arrested and searched, and reported that no gun was found on his person. The police never found any gun.
After the male was arrested, Stenger cared for the female and noticed that her shirt was ripped, and it appeared as if she had urinated on herself.
After interviewing witnesses at the scene, Stenger observed that many bushes along the apartment walkway had been broken. There were also ripped pajama bottoms near the cement wall. Stenger measured the distance directly between the front door and wall as 100 feet. Alberts was found 40 feet farther along the wall from that point of measurement.
6. Appellant’s Testimony
Appellant testified that after 2:00 a.m. on November 26, 2005, he received a phone call from a friend telling him his girlfriend was in front of his house. When he arrived home, Alberts, Gerhart, Mercurio and a couple of men were in his driveway. Appellant asked Alberts to return to her home and told her he would follow in 10 or 15 minutes. Appellant denied having spoken on the phone with Alberts earlier that evening, as Alberts testified. He later drove to Alberts’s home, but because he could not get in the closed gate he parked outside the wall. As was his usual practice, he jumped over it to get to Alberts’s apartment. When he arrived, Alberts led appellant to her bedroom for some privacy. Alberts’s son was in the bedroom and because appellant had cared for him during his relationship with Alberts, appellant walked over to kiss him on the head. Alberts became angry. Appellant noticed that there were piles of clothes on her bed, and the room looked “bad.” It was no place for a child, and appellant worried for the child’s care. Appellant also became angry because Alberts was out so late at night, which in his mind could only mean that she was either “doing wrong or getting high.” Alberts then swung at appellant who ducked the punch, and Alberts knocked over the television. Appellant told Alberts he would leave before he hit her, and left the room. Alberts ran after him. Appellant told the men in the living room they should restrain Alberts as he stepped out the front door.
Alberts followed and grabbed appellant’s jacket telling him they needed to talk. Appellant asked Alberts to allow him to leave but Alberts continued to hold appellant’s jacket as he walked away. Hillmann, Gerhart, and Mercurio then arrived, and immediately Hillman swung a golf club at appellant. Appellant caught the golf club with his hand, and punched Hillmann. Gerhart and Mercurio each attempted to punch appellant, but appellant was able, mostly, to avoid their attacks. He began running, with Alberts continuing to hold his jacket. Because of Alberts’s weight, appellant fell forward and both were on the ground. Appellant stood and headed toward the wall where, on the other side, his car was parked. Alberts held on to him much of the time he was moving.
Alberts stood between appellant and the wall attempting to convince him to talk to her. She told him she would go with him so they could talk and climbed over the wall. Appellant himself also climbed over the wall. Appellant was then arrested.
Appellant’s hand was swollen but he was told it was not broken. At trial, appellant testified that he could not straighten his hand and that he needed surgery. His hip was also bruised during the incident.
7. Jury Verdicts
Appellant was found guilty of attempted kidnapping, felony battery, and misdemeanor assault of Alberts, and felony assault of Lucy Gerhart. He was found not guilty of assault on Richard Hillman, and the court dismissed the assault charge as to Destiny Mercurio on a defense motion.
III. DISCUSSION
Appellant alleges two instances of prosecutorial misconduct during the prosecutor’s closing statements. First, the prosecutor told the jury that appellant’s nickname, Machiavelli, meant a person with a “tendency to deceive,” despite that no explanation of the nickname was offered into evidence. Second, he claims the prosecutor “attacked” and “disparage[d]” defense counsel for not having shown Richard Hillmann the transcript of his testimony at the preliminary hearing after Hillmann testified that he had forgotten testifying at that hearing. We examine each instance separately.
A. “Machiavellian... means a person’s tendency to deceive.”
It is undisputed that appellant is commonly called Machiavelli. During closing argument, the prosecutor stated the following: “[Appellant’s] street name? Machiavelli. Well, there’s a phrase that is an English word called Machiavellian. It means a person’s tendency to deceive and manipulate others for personal gain. His street name is Machiavelli. Means a person’s tendency to deceive.”
Defense counsel objected, and the trial court sustained the objection. The prosecutor then in two sentences finished his argument and defense counsel began her closing immediately thereafter. She made no further mention of the statement.
Generally, to preserve an appeal based on prosecutorial misconduct, a defendant must object to the prosecutor’s remarks and request the jury be admonished in an effort to cure any harm. (People v. Frye (1998) 18 Cal.4th 894, 969, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Hill (1998) 17 Cal.4th 800, 820.) At trial, appellant’s counsel objected to the prosecutor’s remarks and the objection was sustained, but she did not request the trial court give a curative admonition.
An admonishment is unnecessary only if the admonishment would be ineffective and the harm caused by the misconduct would be incurable. (People v. Arias (1996) 13 Cal.4th 92, 159; People v. Gionis (1995) 9 Cal.4th 1196, 1215; People v. Noguera (1992) 4 Cal.4th 599, 638.) Appellant urges that an admonishment during trial could not possibly have cured the prejudice that arose from the prosecutor’s comment. He argues that asking the jury to ignore the meaning the prosecutor attributed to appellant’s nickname would have been impossible and amounted to, in Judge Learned Hand’s words, a “ ‘mental gymnastic which is beyond... their powers....’ ” (United States v. Bruton (1968) 391 U.S. 123, 132, fn. 8.) Yet the integrity of our judicial system rests upon our faith that a jury will follow the court’s instructions. Appellant’s argument is, in effect, that the jury would likely have ignored any instruction by the court. It is presumed, though, that the jury will follow the court’s instructions when given. (People v. Alfaro (2007) 41 Cal.4th 1277, 1326, 1328.) Under these circumstances, we cannot conclude appellant’s assertion that juries generally are incapable of following the court’s instruction is a proper basis for finding jury instruction futile. Because in this case such an instruction would also have cured any prejudice caused by the prosecutor’s remarks, appellant’s failure to request such an instruction waived his appeal on this ground.
Appellant mentions in passing, though does not fully argue, that if we conclude appellant was required to seek an admonition at trial, his attorney’s failure to do so constituted ineffective assistance of counsel. However, “except in those rare instances where there is no conceivable tactical purpose for counsel’s actions, claims of ineffective assistance of counsel should be raised on habeas corpus, not on direct appeal.” (People v. Lopez (2008) 42 Cal.4th 960, 972.) Furthermore, “[i]f the record ‘sheds no light on why counsel acted or failed to act in the manner challenged,’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 746.) We refuse to speculate on what may or may not have been a tactical decision by defense counsel since the issue has not been briefed by either appellant or the prosecution.
Because the court’s admonishment following the alleged prosecutorial misconduct would not have been futile, we conclude the defense’s failure to request the admonition waived appellant’s appeal on this ground.
B. “[Defense counsel] never gave him the opportunity to read the preliminary hearing transcript...”
Appellant alleges the prosecutor acted improperly having “attacked appellant’s counsel.” During cross-examination of prosecution witness Richard Hillmann, defense counsel asked if he recalled testifying “in other proceedings about this matter.” He said he did not and defense counsel moved on to a different subject. On redirect, the prosecutor asked Hillmann if he recalled testifying “in Pittsburg, January 31st, couple months after this incident.” Hillmann answered he did not. Counsel later stipulated that Hillmann had testified at a preliminary hearing in January 2006.
During closing argument, defense counsel asked the jury to consider Hillmann’s testimony “[c]arefully... when you do, you’ll find it totally unreliable. He didn’t remember testifying before, and yet as you’ve heard he did. He testified before.” Defense counsel did not, however, point to any inconsistencies in his testimony, rather that he simply did not remember testifying. During rebuttal, the prosecutor stated that regarding “Richard Hillmann not remembering the preliminary hearing, not at one time was Richard Hillmann shown the copy of the transcript of the preliminary hearing.” Defense counsel objected without stating grounds, which the trial court overruled. The prosecutor continued: “When a witness can’t remember something, an attorney can go up and show him, ‘Hey, these are your words. Why don’t you take a break. Read them. Does that refresh your recollection? Do you remember your prior testimony?’ No. She never gave him the opportunity to read the preliminary hearing transcript and see if he could....” Defense counsel objected again without stating grounds, which the trial court again overruled. The prosecutor moved on to a different subject.
While again defense counsel failed to request a curative admonition to preserve a claim of prosecutorial misconduct for appeal, in this instance such a request would have been futile, as the objection was overruled. An appeal remains preserved despite the lack of any request for admonition if “ ‘the court immediately overrules an objection to alleged prosecutorial misconduct [and therefore] the defendant has no opportunity to make such a request.’ ” (People v. Hill, supra, 17 Cal.4th 800, 821.)
We need not determine whether the statements constituted prosecutorial misconduct because, even assuming so, appellant was not prejudiced by the comment. A conviction is upheld on appeal unless the prejudice resulted in a “miscarriage of justice.” (People v. Hill, supra, 17 Cal.4th at p. 844.) A miscarriage of justice has occurred if appellant’s rights under the federal Constitution have been violated. (Chapman v. California (1967) 386 U.S. 18, 23-24.) In those instances, an appellant need raise only reasonable doubt as to whether the error contributed to the jury’s verdict to have the conviction overturned. (Id. at p. 24.) Even assuming, without deciding, that appellant’s claim of misconduct arises to the level of a constitutional violation, we conclude that even under the more stringent Chapman standard, appellant has suffered no prejudice.
When improper comments are made by the prosecutor to the jury, we must determine whether “the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) Here, the jury’s verdict itself evinces that no such prejudice has occurred. While the prosecutor’s disparaging remark was apparently made in an attempt to rehabilitate Hillman’s credibility, the verdict necessarily reflects that the jury did not find Hillmann credible as it acquitted appellant of assaulting Hillmann. Thus, the jury rejected the very purpose underlying the prosecutor’s reason for making the comment.
However, appellant urges that the comment created a subtler form of prejudice. He argues that the jury’s consideration of counts other than that involving Hillmann was affected by a charge that defense counsel was generally attempting to hide or misconstrue evidence. Appellant argues that “[c]asting aspersions on defense counsel” distracts the jury, directing it to deliberate based upon who it trusts.
First, we disagree that the comment was intended as an attack on defense counsel personally. In our view, the prosecutor’s statements are better interpreted, not as attacking defense counsel personally, but rather attacking the defense strategy in not having shown Hillmann a copy of his transcript. A reasonable jury would not have construed the prosecutor’s statement as an advisement not to trust defense counsel generally, but rather to discount the defense argument that Hillmann has a bad memory, a proposition implicitly rejected by the jury’s verdict.
Moreover, a jury is capable of understanding “the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.” (People v. Sanchez (1995) 12 Cal.4th 1, 70, overruled on other grounds in People v. Doolin, supra, 45 Cal.4th 390, 421, fn. 22.) Suggesting that defense counsel has been misleading does not amount to the necessary prejudice, as the jury would view the statement as mere rhetoric. (See People v. Cummings (1993) 4 Cal.4th 1233, 1302 [concluding prosecutor’s accusation that defense counsel was hiding the truth, in context, would be understood by the jury as urging that it not be misled by the evidence]; People v. Sandoval (1992) 4 Cal.4th 155, 183-184 [concluding that remarks that are a small part of a prosecutor’s lengthy review of evidence are diluted, and more recognizable as “an advocate’s hyperbole”].)
Furthermore, the jury acquitted appellant of three charges, despite substantial witness testimony as to appellant’s guilt, and found him guilty only of lesser included offenses of two charges, suggesting that in its deliberation it did not inappropriately convict appellant based on its distrust of defense counsel.
Because appellant has not shown any prejudice, we conclude that the alleged prosecutorial misconduct, if any, was harmless under any legal standard.
IV. DISPOSITION
The judgment is affirmed.
We concur: Sepulveda, J., Rivera, J.