Opinion
D069369
01-23-2017
THE PEOPLE, Plaintiff and Respondent, v. THERESA LYNN OWENS, Defendant and Appellant.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C. Cavalier and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD257966) APPEAL from a judgment of the Superior Court of San Diego County, Eugenia Eyherabide, Judge. Affirmed. Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C. Cavalier and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Theresa Lynn Owens guilty of one count of driving under the influence of a drug causing injury (Veh. Code, § 23153, subd. (e), count 1), and one count of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a), count 2). The jury also found true allegations Owens inflicted great bodily injury causing permanent paralysis on one individual (Pen. Code, § 12022.7, subd. (b)), inflicted great bodily injury on three individuals (Pen. Code, § 12022.7, subd. (a)), and proximately caused bodily injury to four individuals (Veh. Code, § 23558).
Owens also plead guilty to one count of misdemeanor driving while under the influence of a drug (Veh. Code, § 23152, subd. (e), count 3), related to a separate incident that occurred one month before the crash. The jury did not hear any evidence regarding this separate count at trial.
Owens appeals and argues the prosecutor committed prejudicial misconduct during closing argument. We conclude the prosecutor did not commit misconduct with the exception of one improper statement, which was harmless in light of the record as a whole, and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On August 12, 2014, around 6:30 p.m., Owens drove the wrong way down a one-way road on Fiesta Island at approximately 30 to 35 miles per hour. As she came around a turn at the end of the road, she crashed head-on into a group of approximately 20 cyclists. One of the cyclists was thrust into the windshield of the vehicle and two others were thrown onto the roof. One of the cyclists suffered a spinal fracture that resulted in permanent paralysis from the chest down and a number of the other cyclists were seriously injured as well.
After the crash, Owens was frantic, screaming at the ground and the sky, shaking and thrashing around in an erratic manner, and, at times, incoherent. She admitted to a police officer at the scene, Mariusz Czas, that she had taken methamphetamine earlier that day.
Another police officer, Robert Wells, then spoke with Owens to determine whether she had been driving under the influence of methamphetamine when she crashed into the cyclists. Officer Wells noticed Owens was talking rapidly with a lot of hand movements, that her eyes were bloodshot and watery, and her skin was cold and clammy. Owens had trouble focusing on Officer Wells's questions but told him she had seen her boyfriend with a young woman on the other side of the island and had turned onto the road in order to confront them. She said that she did not know it was a one-way road and did not see the cyclists before she started to make the turn on the other side of the road.
Officer Wells asked Owens if she had any medical conditions and she said she had a spinal fracture, an elbow fracture, kidney problems and diabetes. As a result, he was not able to perform a field sobriety test on her. He took her over to a paramedic at the scene to be evaluated and she became combative and resistant. The paramedic asked if Owens wanted an ambulance to take her to the hospital, she replied yes, and the paramedics arranged for one. Before she left in the ambulance, Officer Wells placed Owens under arrest for driving while under the influence of a controlled substance.
At the hospital, Owens was combative with the nurses and would not answer the doctor's questions. A doctor ordered that she be restrained because of her erratic behavior, and, as they were retraining her, she attempted to bite one of the nurses. Owens was sedated as well and her blood was drawn, pursuant to a warrant, to test for controlled substances. A nurse then attempted to place a catheter and discovered a baggie containing 0.15 grams of methamphetamine inside Owens's vagina. A toxicologist tested the blood taken from Owens and found methamphetamine at a concentration of 132 nanograms per milliliter and amphetamine, a metabolite, at a concentration of 24 nanograms per milliliter.
At trial, Officer Wells testified that he believed Owens was under the influence of methamphetamine when she hit the cyclists based on his own observations of her appearance and behavior. On cross-examination, Owens's counsel confirmed that Officer Wells had not met Owens prior to the collision and was not familiar with her normal demeanor. Officer Czas also testified that he believed Owens was under the influence of methamphetamine when he spoke to her at the scene of the crash based on her appearance and behavior.
Ola Bawardi, the toxicologist that tested Owens's blood, testified that a concentration of 132 nanograms per milliliter in blood is not low and is a common concentration for methamphetamine tests run in the lab where she works. She also opined that it was likely a person with that concentration of methamphetamine in their blood acting in a manner consistent with descriptions of Owens's conduct after the collision, would be unable to operate a motor vehicle safely as a result of the methamphetamine. As with Officer Wells, defense counsel confirmed during cross-examination that Bawardi had not met Owens prior to the incident and was not familiar with Owens's normal demeanor.
The defense called Steven Plourd, an accident reconstructionist. Plourd testified Owens applied her brakes within one and a half seconds of when an average sober person under the same circumstances as those surrounding the crash would have done so. The defense also called Dewayne Beckner, a forensic chemist, who testified the level of methamphetamine in Owens's blood was within the therapeutic range of 100 to 150 nanograms per milliliter and would not necessarily have affected her ability to operate a vehicle with the caution of a sober person. Finally, Owens testified she did not know the road was a one-way road and did not see any signs indicating she was going the wrong way. She also testified she suffered from anxiety and attention-deficit/hyperactivity disorder (ADHD), which made it difficult for her to express herself in a normal manner.
At the conclusion of the trial, the jury found Owens guilty of driving under the influence of a drug and possession of a controlled substance, and found the allegations Owens caused or inflicted bodily injury or great bodily injury on six individuals true.
DISCUSSION
Owens argues the prosecutor committed prejudicial misconduct during his closing argument by: (1) misstating the burden of proof; (2) suggesting the prosecutor was a truth seeker whose main purpose was to get a conviction; (3) characterizing Owens as violent and dangerous; (4) improperly shifting the burden to Owens to prove her conduct after the accident was not due to methamphetamine; (5) insinuating the trial was a waste of the jury's time; and (6) vouching and seeking retribution for a victim. The People argue Owens waived any argument regarding prosecutorial misconduct by failing to object on that ground at trial.
I. Forfeiture
In order to preserve a claim for prosecutorial misconduct on appeal, a defendant must object to the alleged misconduct at trial, stating the specific grounds for the objection, and request that the court admonish the jury to disregard the problematic statement or conduct. (People v. Ayala (2000) 23 Cal.4th 225, 284.) Failure to object or seek an admonition results in forfeiture. (Ibid.)
Here, Owens did object when the prosecutor stated "I don't have to prove my case beyond a reasonable doubt. Defense counsel will have you believe that this is some impossible burden of proof," but did so on the ground the statement misstated defense counsel's argument. Owens also objected twice when the prosecutor stated "[t]his drug has made her the way that she is," and again when the prosecutor stated "[meth] makes her even more anxious, and it makes her violent, and it makes her the way that she was," but did so on the ground these statements assumed facts not in evidence. Because Owens did not object to these statements as misconduct, she did not preserve the prosecutorial misconduct argument on appeal. (People v. Gonzales (2011) 52 Cal.4th 254, 318 (Gonzales).)
Owens did not object at all to the remainder of the statements she now contends were misconduct or request the court admonish the jury to disregard those statements and, thus, forfeited her arguments with respect to those specific statements. Owens argues she did object at other times during the prosecutor's closing, but she did not object on the ground of misconduct and, in any event, objections to other statements do not avoid forfeiture with respect to the specific statements she now asserts were misconduct. (See Gonzales, supra, 52 Cal.4th at p. 318.) Owens also argues further objections would have been futile but she never objected on the grounds of improper argument or misconduct at all and at least one of the six objections she did make was sustained. Therefore, there is no indication further objections would have been futile.
Because Owens did not object to any of the statements that she now argues constituted prosecutorial misconduct as misconduct at trial, we conclude she forfeited her right to argue the same on appeal. However, we address Owens's arguments regarding these statements on the merits in any event and conclude no misconduct occurred.
II. The Prosecutor Did Not Commit Prejudicial Misconduct
A. Applicable Law and Standard of Review
Prosecutors have wide latitude during closing arguments to argue their cases vigorously and to discuss and draw fair inferences from the evidence presented at trial. (People v. Stanley (2006) 39 Cal.4th 913, 951 (Stanley); People v. Fields (1983) 35 Cal.3d 329, 363.) However, a prosecutor commits misconduct when he or she uses deceptive or reprehensible methods to persuade the jury. (People v. Hajek (2014) 58 Cal.4th 1144, 1238 (Hajek), abrogated on other grounds by People v. Rangel (2016) 62 Cal.4th 1192, 1216; People v. Strickland (1974) 11 Cal.3d 946, 955 (Strickland).)
A prosecutor need not act in bad faith to commit misconduct, but the defendant must have been prejudiced as a result. (People v. Bolton (1979) 23 Cal.3d 208, 213-214.) The conduct is prejudicial under the federal constitution when it infects the trial with such unfairness to deny the defendant due process and is prejudicial under state law when it results in a fundamentally unfair trial. (Hajek, supra, 58 Cal.4th at p. 1216; People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215.) Either standard of prejudice requires reversal. (Hajek, at p. 1216.)
The ultimate question the court must decide when a defendant asserts that the prosecutor committed misconduct is whether it is reasonably probable that a result more favorable to the defendant would have occurred absent the disputed conduct. (Strickland, supra, 11 Cal.3d at p. 955.) B. The Prosecutor's Statements During Closing Were Not Misconduct
For the reasons set forth below, we conclude the prosecutor here did not commit misconduct with the exception of one statement and, even if any of the other statements were misconduct, the cumulative effect of any such misconduct was harmless.
1. Statements Regarding the Burden of Proof
Owens first argues the prosecutor committed misconduct by misstating and minimizing the burden of proof. The prosecutor did state the burden of proof incorrectly once during her closing argument when she said, "I don't have to prove my case beyond a reasonable doubt." However, this appears to be an isolated misstatement and the prosecutor corrected it very shortly thereafter, stating, "[s]o I don't have to prove [the] case beyond all doubt, just beyond a reasonable doubt." The remainder of the prosecutor's comments, those of defense counsel, and the instructions the court gave the jury regarding the burden of proof all described it correctly. Therefore, there was no reasonable likelihood any juror would have been confused or misled by the prosecutor's single misstatement. (See, People v. Frye (1998) 18 Cal.4th 894, 960, 970 (Frye) [prejudice based on an erroneous description of the burden of proof requires "a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner"], disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Owens also argues the prosecutor minimized the burden. The prosecutor stated, "Defense counsel will have you believe this is such a high burden. But it's the same burden that we use up and down the hallways of this courtroom, every day, from petty thefts to murder cases. And if it were really that impossible to prove, then no one would . . . ever get convicted." The prosecutor made this argument in response to defense counsel's suggestion that the prosecutor had to walk down the hallway and "close the door" on every question or doubt the jury had. The prosecutor finished this portion of her argument by stating, consistent with the language of the jury instruction given regarding reasonable doubt, "after all the evidence you have heard, I am confident that you have an abiding conviction that the defendant is guilty in this case." The argument was not deceptive or reprehensible and Owens does not provide any authority establishing that it was. Further, as discussed above, the prosecutor, defense counsel, and the court consistently described the burden accurately. Thus, the statement was not misconduct and there is no reasonable likelihood it would have misled the jury. (Frye, supra, 18 Cal.4th at p. 970.)
2. Statements Regarding the Prosecutor's Role as a Truth Seeker
Next, Owens argues the prosecutor committed misconduct by stating, "I am trying to get a guilty verdict in this case, and it's my job as a truth seeker and that's what this—and that's what this trial is, and that's what all trials are, is trying to find the truth, as a truth seeker." Owens originally argued this statement was misconduct because it misstated the prosecutor's role, which is to seek justice rather than convictions. (See, e.g., People v. Talle (1952) 111 Cal.App.2d 650, 677-678; Berger v. United States (1935) 295 U.S. 78, 88.) Defense counsel had previously noted Owens was more combative when answering the prosecutor's questions on the stand than when answering his questions and argued this was evidence her natural demeanor included such "fluctuating behavior." The prosecutor made the allegedly improper comment in response to defense counsel's argument and went on to say, "I have to ask her certain questions that are going to make her uncomfortable." Thus, when read in context, it appears the prosecutor was attacking Owens's credibility by suggesting Owens was anxious during her cross-examination because she had something to hide, and was not attempting to clarify or place importance on her own role.
In her reply, Owens switches tactics and argues the statement was problematic because it implied the prosecutor was seeking the truth while the defense was trying to obfuscate it. However, the prosecutor's comment does not question defense counsel's honesty in any way and the prosecutor did not suggest defense counsel was dishonest at any other point during her argument either. Instead, the prosecutor was commenting on the credibility of the testimony offered by the defendant during the trial, as she was entitled to do. (See Stanley, supra, 39 Cal.4th at p. 951; People v. Meneley (1972) 29 Cal.App.3d 41, 60 [prosecutor did not conduct misconduct by questioning consistency of testimony or possible bias of the witness], disapproved on other grounds as recognized in People v. Bryden (1998) 63 Cal.App.4th 159, 183.) We therefore conclude this statement also was not misconduct.
3. Characterization of Owens as Violent and Extremely Dangerous
Owens argues the prosecutor also committed misconduct by characterizing Owens as violent and dangerous. She points to the following statements made by the prosecutor regarding Owens: (1) "And what this drug has done to her could make you feel sympathetic towards her. And that's understandable. This drug has made her the way that she is"; (2) "I have no doubt that she is an anxious person, okay, but when she's high on meth, it makes her even more anxious, and it makes her violent, and it makes her the way that she was"; and (3) "[b]ecause this type of person, when they get high, is extremely dangerous."
Taken in context, these statements were fair commentary on the state of the evidence and inferences the jury could reasonably draw from that evidence and thus were not misconduct. (See Stanley, supra, 39 Cal.4th at pp. 951, 954.) A number of witnesses described Owens's demeanor at the scene as frantic, erratic, incoherent, and combative. In order to refute that Owens was driving while under the influence of methamphetamine, the defense asserted this was just her normal demeanor. In response, the prosecutor was entitled to argue, as she did, that Owens's erratic behavior was a result of her continued use of methamphetamine over the years and her being under the influence of methamphetamine at the time of the crash. Further, the characterization of Owens as dangerous was also a fair comment on the evidence indicating she crashed head-on into a large group of cyclists causing severe injury. (See Stanley, at p. 953 [description of defendant during closing argument as " 'cold-blooded,' " " 'a person with no soul,' " and someone " 'with no remorse' " was not misconduct given the brutal and violent nature of the alleged crime].) These comments were not misconduct.
4. Suggestion Owens Should Have Called Witnesses Regarding her Demeanor
Next, Owens argues the prosecutor committed misconduct by suggesting Owens had the burden of proving her actions on the day of the collision were the result of her natural demeanor, and not the result of her being under the influence of methamphetamine, by calling witnesses. The prosecutor said, "I know that we have a lot of evidence about the way that she was on [the] scene, but as far as her natural demeanor, you have to take her word for it. Nobody else came in here and said what her natural demeanor is. Now they don't have to call any witnesses, so that's fine. But they could have called somebody to say that. Nobody came in here and talked about her anxiety issues."
While a prosecutor may not assert a defendant was required to produce evidence, the prosecutor may comment that the defendant has not produced any with respect to contested facts, particularly when the prosecutor also acknowledges the correct burden of proof. (People v. Bradford (1997) 15 Cal.4th 1229, 1338-1340; People v. Medina (1995) 11 Cal.4th 694, 755; People v. Bennett (2009) 45 Cal.4th 577, 596.) Similarly, it is not misconduct for a prosecutor to point out the failure of the defense to call logical witnesses. (People v. Bradford, at p. 1340.) Here, by testifying herself and arguing her demeanor on the day of the crash was not the result of methamphetamine, Owens put her natural demeanor at issue such that it was not misconduct for the prosecutor to comment on the credibility of Owens's testimony or the state of the evidence more generally concerning that demeanor. Further, the prosecutor made a point to clarify for the jury that Owens did not have an obligation to call any witnesses. Thus, the prosecutor's comments in this regard were not misconduct.
5. Statements Questioning Owens's Right to a Trial
Owens argues the prosecutor also committed misconduct by suggesting Owens should not have requested a trial given the evidence against her. The prosecutor said, "[s]he had a right to a trial. No matter what the evidence was against her, no matter what the evidence is against her, she had the right to take this case to trial, and she did. And now, she's had her trial. And it's your turn to hold her responsible for what she's done." These statements do not suggest Owens should not have requested a trial or that the jury should not take their duty to evaluate the evidence before them seriously. In fact, the prosecutor specifically said Owens did have a right to a trial and then requested the jury, having sat through the trial and heard all of the evidence, return a guilty verdict. Owens provides no authority indicating this was improper and we find no misconduct based on these statements.
6. Statements Vouching and Soliciting Retribution for a Victim
Owens's final assertion is that the prosecutor improperly vouched for and solicited retribution for Juan V. (Juan), the cyclist who was paralyzed by the crash. The prosecutor said, "[d]efense counsel talked about the fact that [Juan] said that he [had] seen people go the wrong way on Fiesta Island. . . He heard about a collision, another collision, but hasn't seen something like this happen. Something as this great magnitude." The prosecutor was entitled to discuss and draw fair inferences from the evidence presented at trial. (Stanley, supra, 39 Cal.4th at p. 951.) Owens argues this statement was vouching for Juan but the comment does not address Juan's credibility in any way. Instead, it refers directly to Juan's testimony that he had not seen any other collisions caused by someone driving the wrong way down the one-way road on Fiesta Island, but had seen the aftermath of another collision involving a single cyclist. The prosecutor's statement was not misconduct.
California Rules of Court, rule 8.90(b) requires appellate courts to "consider referring to" certain individuals "by first name and last initial" to protect those individuals' privacy. Accordingly, we refer to the victim in this case by his first name and last initial, and thereafter by first name only. Our use of first names is not intended as a sign of disrespect. --------
Regarding Juan's injuries, the prosecutor also stated, "But whatever happens to her [in this case], [Owens] will be able to walk to wherever she's going. [Juan] will never be able to walk anywhere. And that's because of the choices that [Owens] made. And I am asking you to hold her responsible for those choices and find her guilty. Thank you." As there was an allegation Owens inflicted great bodily injury causing permanent paralysis on Juan, the prosecutor's reference to his inability to walk, alone, was not improper.
Owens argues the discussion was nonetheless improper because it sought retribution for Juan's injuries and improperly appealed to the sympathies of the jurors. Arguments evoking sympathy for the victim by, for example, inviting the jurors to imagine the victim's suffering, are improper. (See People v. Leon (2015) 61 Cal.4th 569, 606; see also People v. Vance (2010) 188 Cal.App.4th 1182, 1188 ["blatant appeal to the jury's natural sympathy for the victim" is misconduct].) Here, Juan's paralysis was properly part of the record and the prosecutor did not elaborate on Juan's suffering or ask the jury to imagine it. However, the People conceded during oral argument that the prosecutor's comparison of Owens's ability to walk to the victim's paralysis was improper, and we agree. The comparison served no legitimate purpose, improperly pandered to the jury's natural sympathies, and should not be countenanced.
7. Any Misconduct Was Harmless
Although the comparison of Owens and Juan's future mobility was improper, it was harmless in light of the record as a whole.
There is no dispute that Owens tested positive for methamphetamine after the collision. Although her own expert testified that no one would be able to see the cyclists around the blind corner and that Owens applied the brakes within one and a half seconds of when an average sober person would have under the circumstances, Owens had put herself in that position by driving the wrong way down the one-way street in the first instance. In doing so, she either failed to notice or voluntarily ignored multiple indications she was driving the wrong way, likely because of the significant amount of methamphetamine in her system at the time. The victims, police officers and medical personnel testified her actions following the collision were erratic, incoherent and combative, and an expert testified such actions were consistent with an individual that was under the influence of the methamphetamine. While Owens testified her demeanor was merely the result of her anxiety, the evidence suggests her testimony was not credible. Finally, the court instructed the jury "not [to] let bias, sympathy, prejudice, or public opinion influence [its] decision," and we presume the jury followed the court's instructions. (See, People v. Martinez (2010) 47 Cal.4th 911, 957.)
Given the jury instruction and the overwhelming evidence indicating Owens was under the influence of methamphetamine, we conclude there is no reasonable probability that a result more favorable to the defendant would have occurred absent the prosecutor's improper comparison of Owens's and Juan's ability to walk. (See Strickland, supra, 11 Cal.3d at p. 955.) Further, even if any of the other statements made by the prosecutor also amounted to misconduct, we conclude the cumulative effect of any such misconduct was also harmless for the same reasons.
III. Defense Counsel Was Not Ineffective
Owens also asserts, summarily, that her counsel was ineffective for failing to object to the alleged misconduct during the prosecutor's closing argument.
A defendant arguing ineffective assistance of counsel must show counsel's performance was well below the standard of reasonableness under prevailing professional norms and the deficiency undermined the fairness of the defendant's trial or, put another way, the result would have been more favorable to the defendant but for counsel's unreasonably substandard performance. (Strickland v. Washington (1984) 466 U.S. 668, 686-688; In re Wilson (1992) 3 Cal.4th 945, 950.) On review, we presume the trial counsel's decisions were proper and give deference to trial counsel's tactical choices. (Strickland v. Washington, at pp. 691-694; People v. Hinton (2006) 37 Cal.4th 839, 876.) We assess the reasonableness of counsel's tactical decisions under the circumstances in which counsel made the decisions and do not second-guess them in hindsight. (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212.)
Here, as discussed supra, other than the single improper but harmless statement comparing Owens and Juan, the prosecutor did not commit misconduct in her closing statement. As such, it was not necessary for Owens's counsel to object, the court likely would have overruled at least most of the objections in any event, and the objections would not have altered the outcome of the case. Accordingly, we conclude, under the governing deferential standard, it was a reasonable tactical decision for Owens's counsel not to object and Owens was not prejudiced as a result.
DISPOSITION
We affirm the judgment.
O'ROURKE, J. WE CONCUR: HUFFMAN, Acting P. J. HALLER, J.