Opinion
A152660
09-30-2019
THE PEOPLE, Plaintiff and Respondent, v. EMMANUEL OGUNLEYE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 517055854)
Defendant Emmanuel Ogunleye appeals his conviction of assault with a semi-automatic firearm (Pen. Code, § 245, subd. (b)) and brandishing a firearm at a person in a motor vehicle (Pen. Code, § 417.3). He contends the prosecutor committed prejudicial misconduct by asking questions that disparaged his education and implied that he and his counsel had fabricated his testimony. We conclude there was at most only a single improper question and that it did not constitute misconduct under federal or state law. Therefore, we shall affirm the judgment.
Factual and Procedural History
At trial there was evidence of the following. In February 2014, defendant lived in Antioch with his 18-year-old daughter Yetunde. Under his bed, he kept a semiautomatic pistol that he had owned since 1987 but fired only once, as a test. Defendant had studied law in Nigeria before emigrating to the United States. He never took the California bar exam, but worked for the Social Security Administration and later began a private practice representing people in hearings before that agency.
To avoid confusion, we refer to Ms. Ogunleye by her first name.
On the night at issue, Yetunde had arranged to sneak out of the home through her bedroom window after defendant fell asleep, to join 30-year-old Josh Mazzanti, whom she had met online. About 2:30 a.m., Mazzanti parked on a street bordering the side yard of the house and texted Yetunde. As Yetunde began to climb out her window, she knocked over a cup or glass, making a noise that awakened defendant. He went to her room and saw the window open. He testified that he felt "panicked," fearing that she had been abducted, so he got his gun, cocked it, and searched the house. He then returned to Yetunde's room and called for her. She had not yet left the yard, and she walked back to the window.
Defendant's and Yetunde's respective testimony about their conversation at the window conflicted. Defendant testified that Yetunde said she was going out "with friends," but she testified that defendant asked who she was meeting and she confessed that it was "a boy." In either case, defendant told Yetunde to come to the front door. After texting Mazzanti that she had been caught and he should leave, she began walking toward the front door.
Defendant got to the door first and did not see Yetunde. He put his gun on a stool but then changed his mind and, according to his testimony, put the pistol in the pocket of his pajama pants before leaving the house. He called Yetunde, who emerged from the side yard and began walking into the house. Defendant testified that he asked Yetunde where her friends' car was but she did not reply, and then he heard an engine and decided to go lecture her friends.
As defendant walked toward the car, Mazzanti was reading Yetunde's text. The two men's accounts of their ensuing encounter sharply conflicted. Mazzanti testified that he looked up from his phone to see defendant pointing a gun at him and yelling something that he could not understand. Training the gun on Mazzanti, defendant walked around the car to the driver's side, pressed the gun to the window, and motioned for Mazzanti to roll down the window. Mazzanti did not do so. He reached forward, put his car in drive, and hit the accelerator. As he sped away, he heard a gunshot and his car window shatter, and felt a pinch in his back.
Defendant, by contrast, testified that the gun was in his pocket as he walked toward the car, where he expected to find Yetunde's friends. When he reached the car, he saw a man holding a phone. Defendant told the man to roll down his window, but the man looked at his phone and shrugged. Suddenly, the man reached toward the back of the car. Fearing that he was reaching for a weapon, defendant panicked and pulled out his gun. The car accelerated, defendant backed away in fear, and his gun went off. He had not meant to pull the trigger.
The bullet was found in the driver's seat. A criminalist testified that it had gone through the side window behind Mazzanti and likely hit the frame of the driver's seat before lodging in the seat. The bullet did not penetrate Mazzanti's body, though the impact gave him a bruise.
Defendant returned to his house, put his gun on the TV stand, and came back out to talk to Yetunde. Neighbors had called 911 and, within minutes, police officers arrived. Defendant was cooperative. Officer Kris Kint took two statements from him, and another officer recorded an interview of Yetunde. In that interview, she said that after defendant ordered her back inside the house she heard defendant yelling, followed by a shot.
When Officer Kint interviewed defendant, he asked, "So by the time you walk over to this guy's car, you already had the gun in your hand, is that what you're saying?" Defendant replied, "I already had the gun in my hand." He did not tell Kint that the gun was in his pocket. He also said to Kint, "I thought maybe it was just one of her friends, so I went over there. Is that a guy? I thought [that] this is a guy. And I said, 'wind down, wind down.' At this point, I really basically wanted to lecture him." Defendant also told Kint that he had said to Mazzanti, "This is my home, this is my daughter, you have no right to do this. And I'll have to report you to the police." At trial, defendant denied having said those things to Mazzanti. He testified that, in response to Kint's question, he had been "just making up stuff that I would have said if [Mazzanti had] really rolled down the window."
Defendant was charged with three felonies: (1) assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)), (2) shooting at an occupied motor vehicle (Pen. Code, § 246), and (3) brandishing a firearm at a person in a motor vehicle (Pen. Code, § 417.3). After a trial involving just over two days of testimony from eight witnesses, a jury found defendant guilty of assault and of brandishing but not guilty of shooting at an occupied vehicle. The trial court ultimately sentenced defendant to three years in prison. He has timely appealed.
The sentence comprises the low term of three years on count one, with a midterm of two years on count three stayed pursuant to section 654. The information included allegations supporting an enhancement for personal use of a firearm (Pen. Code, § 12022.5, subd. (a)), which the jury found true. The court initially imposed a sentence of six years, including a three-year personal-use enhancement. But while this appeal was pending, the court recalled the sentence and struck the enhancement under newly enacted Penal Code section 12022, subdivision (c), reducing the sentence to three years in prison. On appeal, neither party raises any issue regarding the sentence.
Discussion
Defendant's only contention on appeal is that the prosecutor asked questions and made comments amounting to prejudicial misconduct. The applicable legal standards are well settled: " '"A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.' " ' [Citations.] Conduct . . . that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ' " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' [Citation.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Samayoa (1997) 15 Cal.4th 795, 841 (Samayoa).) The forfeiture rule does not apply if an objection or request for an admonition would have been futile, or if no admonition could have cured the prejudice caused by the misconduct. (People v. Panah (2005) 35 Cal.4th 395, 462.) A defendant bears the burden on appeal of establishing the applicability of either exception. (Ibid.)
"Are you a lawyer" questions
Defendant contends the prosecutor used repeated, ambiguous questions about his legal training to disparage him and make him seem evasive. The disputed line of questions arose from defendant's answer to one of the prosecutor's first questions on cross-examination, whether he recalled having told Officer Kint that his gun was in his hand as he walked toward Mazzanti's car. Defendant responded: "A. If I remember clearly, he led—he asked me if I already had it in my hand. [¶] Q. Did you just say he led? [¶] A. Yes. Yeah, because he puts the question in such a way that he just wanted to affirm that I did. [¶] Q. Sir, are you saying that Officer Kint was asking you leading questions? [¶] A. In my opinion, yes." At that point, the prosecutor asked defendant if he had legal training and then repeatedly asked, "Are you a lawyer?" Defendant had difficulty giving a yes-or-no answer because, as he explained, he had legal training and represented people in administrative hearings, yet was not a member of the California bar. In her closing argument, the prosecutor characterized defendant as "evasive in all of his answers on the stand" and pointed to this exchange as an example: "He couldn't even answer the simple question of whether or not he was a lawyer."
"Q. Do you have legal training, Mr. Ogunleye? [¶] A. Yeah. [¶] Q. Are you a lawyer? [¶] A. No, I'm a social security lawyer. [¶] Q. Have you passed the bar in California? [¶] A. I did not do the bar. ... [¶] Q. So, how are you a lawyer in California if you haven't passed the bar? [¶] A. You asked me if I have legal experience, and I told you. [¶] Q. I asked you if you're a lawyer. [¶] A. I'm not— [¶] Q. Are you a lawyer? [¶] A. Anybody that has a law degree is considered a lawyer, I think. [¶] Q. Mr. Ogunleye, are you a lawyer? [¶] A. I really don't know how to answer that. I have a law degree. [¶] Q. Are you a lawyer, Mr. Ogunleye? [¶] A. I don't know how to answer that question. [¶] Q. Let me ask you one more time: Are you a lawyer, Mr. Ogunleye? [¶] A. I don't know how to answer that. [¶] Q. Have you passed the California State Bar, which would give you a license to practice law in the State of California? [¶] A. No. [¶] Q. So you're not a lawyer, Mr. Ogunleye? [¶] A. I'm [sic] not a lawyer, then I'm not."
The prosecutor's questions were certainly caustic and repetitive. Nor were they "simple," given the ambiguity that defendant perceived in the term "lawyer." Defense counsel might well have objected to the questions as vague and ambiguous, asked and answered, or badgering, but he did not do so, and he did not request an assignment of misconduct and an admonition. Defendant thus forfeited any claim of misconduct based on those questions.
If the misconduct claim is forfeited, defendant contends, his counsel's failure to object constituted ineffective assistance. But defendant has not rebutted the "strong presumption that . . . the challenged action 'might be considered sound trial strategy.'" (Strickland v. Washington (1984) 466 U.S. 668, 689.) A competent attorney "may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel." (People v. Kelly (1992) 1 Cal. 4th 495, 540.) In this case, defense counsel may have made a tactical choice not to object because the prosecutor was doing more to make herself seem obdurate than to make defendant seem evasive. As defendant notes on appeal, the prosecutor's "hostility and rudeness . . . is evident even on a cold record." In any event, defendant can obtain relief based on ineffective assistance only if he shows "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington, supra, at p. 694.) Failure to object to the "lawyer" questions is the only error that defendant assigns to his trial counsel. It is not reasonably probable that, but for that failure to object, the result of the trial would have differed.
In any event, the prosecutor's obduracy did not sink to the level of misconduct. While she may have realized that defendant perceived an ambiguity in the word "lawyer" that prevented him from giving a yes-or-no answer, and disingenuously chose to exploit the situation by continuing to ask "Are you a lawyer?" in hopes of making him appear evasive, it is at least equally possible that she believed it to be self-evident that the term "lawyer" can mean only a member of the bar. In any case, it is not reasonably likely that the jury interpreted this brief exchange, followed by a single reference in closing argument, to indicate that defendant had been evasive or noncredible on material issues.
Defense counsel fabrication questions
Defendant's weightier contention is that the prosecutor committed misconduct by implying that defense counsel induced him to fabricate testimony to support his claims of self-defense and accident. After the "Are you a lawyer?" exchange, the prosecutor returned to her initial line of inquiry by reminding defendant of his statement to Officer Kint that the gun had been in his hand as he approached the car. This exchange followed: "Q. Do you remember saying that? A. I remember saying that. Q. [A]t the time that you gave the statement to Officer Kint, that was close in time to the shooting, correct? [¶] A. Yes. [¶] Q. And you hadn't had the opportunity to speak with a criminal defense attorney or to Mr. Dengel? [¶] Mr. Dengel: Objection, Fifth Amendment, Sixth Amendment, Fourth— [¶] Court: Overruled. [¶] Q. Correct? [¶] A. Correct."
On redirect-examination, defense attorney Dengel asked questions apparently designed to counter the implication that he had coached defendant to change his account of where the gun had been immediately prior to the shooting. Dengel identified other statements defendant had made to Officer Kint that preceded his meeting with counsel and that were consistent with his testimony at trial. (He did not ask what defendant told the officer about the location of the gun or whether he had changed his account in that regard because his attorney told him to do so.) On recross-examination, the prosecutor asked, "How many times did you talk to Mr. Dengel about testifying today?" Dengel successfully objected based on attorney/client privilege, but did not claim misconduct. The prosecutor then asked, "How many times did you practice your testimony today?" After the court overruled several objections, defendant answered, "Just twice." The recross-examination concluded with this exchange: "Q. . . . Mr. Dengel talked about the fact that you didn't have a lawyer the night that you gave your statement to Officer Kint. Do you remember? [¶] A. I remember. [¶] Q. . . . [Y]ou told Officer Kint that the gun was in your hand, do you remember that statement? [¶] A. I remember testifying that I didn't have a lawyer, yes. [¶] Q. And would your testimony or your statement have been different had you had a lawyer? [¶] Mr. Dengel: Objection, Fifth and Sixth Amendment. This is irrelevant. [¶] The Court: Overruled. Would it have been different? [(Sic.)] [¶] The Defendant: I don't know. Maybe counsel would have advised me. I don't know. . . . [¶] Q. Well, the whole purpose was to be truthful, correct? [¶] A. And I am."
The reporter's transcript attributes the "Would it have been different?" query to the court.
Defendant contends the prosecutor continued to engage in misconduct in her closing argument by stating that he "doesn't get a free pass because . . . he's come up with this contrived defense after the fact," that "[j]ust because the defense—the defendant contrives a defense after the fact doesn't mean that he gets [an acquittal]," and that the reason defendant would not admit that Yetunde had told him she was meeting a boy is that her statement "won't go with the contrived defense after the fact." In her rebuttal argument, the prosecutor said that defendant tried after the shooting "to build in this bogus self-defense argument," but he created "a fatal flaw when he talked to the police" to "set up his defense" because he said that the gun was in his hand. Asserting that this fact would make defendant unable to "claim accident" or to "get a self-defense instruction," the prosecutor contended that, as a result, "defendant's testimony changed" and "the contrived defense after the fact happens."
Defendant also challenges the prosecutor's assertion that "It's unreasonable to pull a gun on someone when you've never seen them have a gun or a weapon." Interpreting this statement to mean, "As a matter of law, it never can be reasonable to point a gun at anyone not holding a weapon," defendant contends the prosecutor misstated the law of self-defense. In context, however, the comment meant only that under the circumstances, it would not have been reasonable to point a gun at Mazzanti unless defendant saw a weapon. In any event, the court instructed the jury to disregard comments of counsel conflicting with its instructions, which defined self-defense. There is no reasonable likelihood that the jury applied the remark "in an objectionable fashion." (Samayoa, supra, 15 Cal.4th at p. 841.)
There is no doubt that "[t]he unsupported implication by the prosecutor that defense counsel fabricated a defense constitutes misconduct." (People v. Bain (1971) 5 Cal.3d 839, 847.) " 'Although counsel have broad discretion in discussing the legal and factual merits of a case [citation], it is improper to . . . resort to personal attacks on the integrity of opposing counsel [citation].' [Citation.] 'If there is a reasonable likelihood that the jury would understand the prosecutor's statements as an assertion that defense counsel sought to deceive the jury, misconduct would be established. [Citation.] On the other hand, '[a]n argument which does no more than point out that the defense is attempting to confuse the issues and urges the jury to focus on what the prosecution believes is the relevant evidence is not improper.' " (People v. Spector (2011) 194 Cal.App.4th 1335, 1405.)
In support of his contention that the prosecutor's questions and comments here constituted misconduct, defendant cites several decisions involving extreme instances of misconduct. (E.g., People v. Bain, supra, 5 Cal.3d at p. 845 [" 'You might say to yourself, "The defendant's got a good story." Did you think he was going to come in here without a good story? . . . I don't want to imply that my colleague here . . . told him what to say, but he has the assistance of a lawyer' " and " 'people don't hire lawyers just to give them money . . . . I'm saying that merely because he had a lawyer—that's what I'm saying. Now if that shoe fits, he can wear it.'"]; People v. McCracken (1952) 39 Cal.2d 336, 348-349 [" 'this is a planned defense and it didn't grow out of the mind of this defendant,' " and "counsel should have said, 'I had an awful time pushing that story into his—" ' "]; People v. Charlie (1917) 34 Cal.App. 411, 414-415 [The defendant initially told the truth " 'before he had any attorneys to tell him it was not true,' " but " '[w]hen he got attorneys, they said to him, "We can make a fine self-defense case out of this, so you say that you saw the knife . . . ." ' "]; People v. Nelson (1964) 224 Cal.App.2d 238, 254 [" 'There was a big change in [a witness's] attitude about the time [defense counsel] got in the picture.' "].) The Attorney General, in turn, cites other cases in which "the focus of [a challenged] comment was on the evidence adduced at trial, rather than on the integrity of defense counsel." (See, e.g., People v. Frye (1998) 18 Cal.4th 894, 977-978, disapproved on other ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Courts have repeatedly distinguished People v. Bain, supra, 5 Cal.3d 839 as an "extreme case of prosecutorial misconduct." (People v. Breaux (1991) 1 Cal.4th 281, 305; accord, People v. Gionis (1995) 9 Cal.4th 1196, 1220; People v. Jackson (1989) 49 Cal.3d 1170, 1192; People v. Spector, supra, 194 Cal.App.4th at p. 1405.)
Here, the single instance when the prosecutor may have crossed the line was her question on cross-examination asking defendant to confirm that when he told Officer Kint that the gun was in his hand as he walked toward Mazzanti's car, he "hadn't had the opportunity to speak with a criminal defense attorney or to Mr. Dengel." Contrary to the Attorney General's argument, this question was asked before, rather than "after defense counsel extensively questioned [defendant] about whether he had consulted with a lawyer prior to speaking with police." The prosecutor's question thus cannot be justified as a response to testimony initially elicited by the defense. Nonetheless, the prosecutor did not necessarily imply that defense counsel prompted defendant to change his version of events, and did not make any comments tending to impugn counsel's integrity.
During recross-examination, the prosecutor asked defendant whether he remembered that "Mr. Dengel talked about the fact that you didn't have a lawyer the night that you gave your statement to Officer Kint." After defendant answered that he remembered, the prosecutor asked, "The statement where you told Officer Kint that the gun was in your hand, do you remember that statement?" Defendant gave the nonresponsive answer, "I remember testifying that I didn't have a lawyer" and the prosecutor followed with, "And would your testimony or your statement have been different had you had a lawyer?" Counsel's objection was overruled, and to the court's question "Would it have been different?" defendant responded, "I don't know. Maybe counsel would have advised me. I don't know." In this exchange, the prosecutor again stopped short of stating or necessarily implying that counsel had advised defendant to change his testimony.
On re-cross, the prosecutor asked how many times defendant talked to counsel "about testifying today" but the court sustained an objection to the question based solely on attorney/client privilege, and defense counsel did not assert misconduct or request an admonition. The prosecutor's ensuing question about defendant practicing his testimony was not improper, for it did not imply that counsel advised defendant to testify falsely. It was not misconduct to point out the conflict between defendant's testimony and his prior statement to the police, or to imply that defendant changed a truthful account to an untruthful one to bolster his defense. (People v. Gordon (1982) 136 Cal.App.3d 519, 532-533.) The prosecutor did not assert or imply that the conflict was due to defense counsel's fabrication of the testimony. (See ibid. [no misconduct in reference to a "carefully contrived defense to weave their way through the evidence [and] distort the truth" because, while comment implied that defendant's testimony "was deceptive," jurors would not likely have interpreted the statement "as an accusation that defense counsel fabricated a defense"].)
Defendant's criticism of the prosecutor's closing and rebuttal arguments similarly lacks merit. In each instance, the prosecutor stated only that defendant had "contrived" or "come up with" defenses based on spurious claims of accident or self-defense. The prosecutor did not state or imply that defense counsel contrived the defense, as did the prosecutors in People v. Bain, supra, 5 Cal.3d 839, and the other cases cited by defendant. Several of the comments suggested that defendant himself had decided on the night of the shooting—before he spoke with counsel—to say things to the police to lay a foundation for a claim of accident or self-defense. It was not improper to accuse defendant of having "contrived" a defense so long as the prosecutor did not attribute the contrivance to misconduct by defense counsel. (People v. Gordon, supra, 136 Cal.App.3d at pp. 532-533.)
In sum, the only questionable conduct as to which defendant preserved a claim of misconduct was the initial question on cross-examination about not having talked to counsel before the statement to Officer Kint. Even if that question was improper, it does not establish a "pattern of conduct" satisfying the federal standard for misconduct (Samayoa, supra, 15 Cal.4th at p. 841). Under the California standard, which requires the use of "deceptive or reprehensible methods" to persuade a jury (ibid.), the question, even if improper, does not amount to misconduct. The prosecutor never stated that counsel had told defendant to change his account, as prosecutors did in People v. McCracken, supra, 39 Cal.2d 336 and People v. Charlie, supra, 34 Cal.App. 411. If there was an implication that counsel had contributed to the change in defendant's account, the implication was much less direct, heavy-handed, and inflammatory than those held to amount to misconduct in People v. Bain, supra, 5 Cal.3d 839 and People v. Nelson, supra, 224 Cal.App.2d 238. Defendant has not shown misconduct, or that any of the questions or remarks he questions were so egregious or pervasive as to have had any likely effect on the outcome of the trial.
Disposition
The judgment is affirmed.
/s/_________
POLLAK, P. J. WE CONCUR: /s/_________
STREETER, J. /s/_________
TUCHER, J.