Opinion
A147429
05-25-2018
THE PEOPLE, Plaintiff and Respondent, v. LEONDRE PAIGE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. C176452A)
A jury convicted defendant Leondre Paige of first degree murder (Pen. Code, § 187, subd. (a)) and also found he personally used and discharged a firearm causing great bodily injury (§ 12022.53, subds. (b)-(d)). On appeal, he contends multiple statements the prosecutor made during the course of the trial constituted misconduct, or alternatively that his trial counsel was ineffective for failing to object to those comments. He also contends the trial court erred by failing to conduct a Marsden hearing. In supplemental briefing, defendant further asks that his sentence be reversed and the matter be remanded to permit the trial court to exercise its discretion as to whether to strike the firearm enhancement pursuant to Senate Bill No. 620. The Attorney General agrees section 12022.53 applies retroactively and that the matter should be remanded. We affirm the judgment, but remand for the trial court to consider resentencing under amended section 12022.53, subdivision (h).
All further statutory references are to the Penal Code unless otherwise indicated.
People v. Marsden (1970) 2 Cal.3d 118.
BACKGROUND
On June 13, 2011, Dante Burch went to see Carlos Bradford who lived at an apartment complex in San Leandro. Burch and Carlos were friends from the neighborhood, and Carlos used to sell marijuana to Burch "all the time." Burch pulled up in his car with music blaring, which upset Carlos who tried to tell him to lower the volume, as he did not want to disturb his neighbors.
Because Carlos and his brother Danny share a last name, we refer to them by their first names to avoid any confusion.
Around midday the next day, Burch returned with his girlfriend Alexis Johns to purchase some marijuana from Carlos, but Carlos was on his "way to pick up some more weed," so he told Burch he did not have any. After that, Burch called Carlos a " 'bitch ass nigger,' " and Carlos returned the insult. Burch then got out of his car and the two began fighting. A friend of Carlos came over to break up the fight, and Burch "got mad" thinking the two "jumped on him." Burch was "highly upset," and stated he was " 'about to get my boys since you got your boys.' " Burch left and called defendant because he wanted somebody to "have [his] back" and make sure he "didn't get jumped again." Defendant was with his cousin Chadrick Frazier, Daquan Lane and Tyrell Ewing. The four of them had been drinking alcohol and smoking marijuana since "about 10, 11" in the morning. Burch picked up defendant, Ewing, Lane, and Frazier in east Oakland and they, along with Johns and Burch's cousin Janae Johnson, who Burch had picked up beforehand, drove back toward San Leandro.
On the way, Burch asked if anyone had a gun, and defendant confirmed he did. According to Burch, it "was a black gun with [an] extended clip" or "magazine." The group stopped at a liquor store near the apartment complex. There, Burch got the gun from defendant and put it in the pocket of his sweatpants. After defendant made a purchase at the store, Johns, Lane and Johnson decided to walk over to the apartment complex, while defendant, Frazier, Ewing, and Burch followed after in the car.
At this point, it was around 4:00 or 5:00 in the afternoon, and there was a barbecue going on at the complex. Burch parked his car in his spot, and he, defendant, Ewing and Frazier exited the vehicle. Carlos and "all his boys" were there along with a group of girls. Carlos and "his boys" started walking toward Burch and defendant, so Burch "pulled the gun out and gave it back to [defendant]," telling him, "I'm about to fight dude." Burch and Carlos then got into a "verbal confrontation," exchanging "[b]ad words, cussing, arguing." By that point, "at least 30 people" were outside watching the events unfold. Just as the confrontation was escalating, Carlos's brother Danny pulled up in the parking lot.
Carlos "came at [Burch] to start the fight." Burch kicked and punched Carlos, then got him into a "headlock," and Burch was "trying to swing him to the ground." Danny, who was 6'3, 260 pounds and described as a "big guy," "all muscle," came over and "knocked [Burch] down with one punch." Carlos fell on top of him. Both men then heard gunfire. Burch got up, checked himself for wounds and saw defendant "running with a gun in his hand." Danny took off his shirt, said " '[t]his nigga shot me,' " and collapsed to the ground. A woman at the scene was a nurse and administered aid, until emergency personnel arrived. Meanwhile, Burch fled the scene but was arrested shortly after police found him hiding on the back patio of an apartment. Burch had been on probation and served 70 days for a violation but was later released, until three years later when he was arrested for murder. Frazier, Lane and Ewing all ran in the same direction ending up at Bayfair Mall.
Other witnesses testified that Danny had taken his shirt off before entering the fight. Defendant, however, maintained Danny kept his shirt on throughout the fight.
Deputies were dispatched to the scene after reports of gunfire. Upon arrival, deputies located Danny who was suffering from multiple gunshot wounds. Danny was transported to a hospital where he was later pronounced dead.
Defendant had also run from the scene. He called his friend LaDay Anderson to ask for a ride. She picked him up and took him to Oakland. Defendant then left the Bay Area and "went to a few different states," including Louisiana because he "knew the police were going to be looking for [him.]" Defendant was "on the run for almost three years," before he was arrested in Sacramento.
Defendant was charged by information with one count of murder (§ 187, subd. (a)). It was further alleged he personally discharged a firearm causing great bodily injury (§§ 12022.5, subd. (a), 12022.53, subds. (b)-(d), (g), 12022.7) and that this was a second strike offense (§§ 1170.12, subd. (c)(1), 667, subd. (e)(1)).
At trial, Antoinette Pashell (commonly referred to as Shay Shay) testified she saw Burch and Carlos arguing, when defendant called out to her. Defendant and Pashell had gone to middle school together. She walked over to defendant, gave him a hug, and "felt something hard" near his back pocket; she was not "quite sure if it was a gun or a bottle." She then went back to her apartment. Pashell was reluctant to come to court because where she was from, "you don't talk to the police."
Chioma Iweka was also a reluctant witness and thought the prosecutor was " 'putting [her] in danger' " by talking to her. Before trial she told both law enforcement and the prosecutor that the man Pashell hugged was the man who shot Danny. At trial, Iweka testified she did not recall having said that to police, but she did remember telling them "the person that Shay Shay gave a hug to you know came with [Burch]" to the scene.
Burch testified that he did not kill Danny, rather they were all good friends, "hung out together, barbecues together, watched each other's kids." Burch said he saw defendant running with a gun, it was the same gun defendant had had earlier, and he had not "seen anybody else with a gun that day." He also said, when getting up off the ground, he asked something "like, 'Who shooting?' Or, 'Why shooting?' " By the time Burch testified, he had taken a deal in regard to Danny's murder whereby he pleaded guilty to second degree murder and if he came "here today and t[old] the truth, it will get dropped to a manslaughter and receive no more than nine years." He said when he was first arrested he "lied about everything," and even during the preliminary hearing he "was a little truthful, but [he] wasn't 100 percent truthful." At that time, he was "not supposed to cooperate with the police" and he was just trying to "protect" defendant. However, as trial approached, Burch decided to talk to the district attorney who in turn made it "clear . . . that this was the last chance [and Burch] had to be honest."
Tyrell Ewing testified that when he was interviewed by police he identified defendant as the shooter.
Daquan Lane testified Burch asked if anyone "had a strap, a gun" when he picked up Lane, defendant, Ewing, and Frazier, and that defendant stated he had a gun. Lane confirmed he saw defendant pull "an all black gun with an extended clip," from his waistband and point the gun at Danny. Further, he confirmed that he, defendant, Ewing, and Frazier drank alcohol and "used marijuana regularly," and started smoking about "noon till—till nighttime," on the day of the shooting. Lane acknowledged he was testifying pursuant to a deal whereby he had pled guilty in another case to first degree murder for a "maximum of six years in state prison," if he came to court and told the truth.
Defendant's "blood" cousin Chadrick Frazier also testified. He testified that "after shots rang out," Burch asked defendant " 'Why you do that?' " He claimed not to recall previously telling the prosecutor that Burch had directed that question to defendant and that defendant had had a gun. He also claimed not to recall that he had previously said that the shots came from his right and defendant was standing to his right. Frazier did testify that he, defendant, Lane, and Ewing had been smoking marijuana and drinking alcohol that day and that based on his observations, defendant was under the influence. Frazier acknowledged he "would rather not be involved" with the case, that he had been crying before he testified, and he did not want to say what had happened. He also acknowledged he had made a deal with the district attorney "that if [he] came and told the truth, [his] sister wouldn't have to come" in to testify.
Inspector Caesar Basa testified that when he and the district attorney had interviewed Frazier, Frazier told them the shots came from his right, but had not wanted to identify who was standing to his right. Instead, he hunched over and started to cry. Eventually, he said defendant was standing there. He also told them defendant was holding a black gun with an extended magazine, and that Burch had exclaimed, " 'Why'd you shoot?' " Frazier continued to cry throughout the interview.
Defendant testified on his own behalf, admitting that he shot Danny but that his intention was that he "just wanted to scare him," as he "was scared for, you know, my friend." He confirmed he "had a black 9 millimeter semi-automatic" gun with "an extended clip." He did not know if Danny had a weapon, but saw Danny go to the trunk of his car and thought Danny "was trying to receive a weapon or something."
Defense counsel presented no other rebuttal evidence.
The jury found defendant guilty of murder in the first degree and further found he personally and intentionally discharged his firearm. The trial court sentenced defendant to 50 years to life (25 years to life for the first degree murder conviction and a consecutive 25-years-to-life sentence for the personal use of a firearm enhancement).
DISCUSSION
Prosecutorial Misconduct
Defendant asserts the prosecutor committed misconduct while questioning Burch, Lane, Frazier and Inspector Basa by "impermissibly injecting his own personal beliefs and opinions into evidence, and by vouching for the credibility" of those witnesses. Defendant also contends the prosecutor committed misconduct on "multiple occasions" during his closing argument. He additionally maintains the cumulative effect of the alleged misconduct deprived him of his due process rights.
Forfeiture
Defendant made no objection in the trial court to any of the prosecutor's conduct he now challenges on appeal. He has thus forfeited any asserted errors in this regard on appeal. (People v. Brown (2003) 31 Cal.4th 518, 553 ["To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely objection, make known the basis for his objection, and ask the trial court to admonish the jury."].)
Anticipating forfeiture, defendant alternatively contends the failure of his attorney to object resulted in ineffective assistance of counsel.
"When challenging a conviction on grounds of ineffective assistance, the defendant must demonstrate counsel's inadequacy. To satisfy this burden, the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice. . . ." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
In considering a claim of ineffective assistance of counsel, it is not necessary to determine, ' "whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." ' (In re Fields (1990) 51 Cal.3d 1063, 1079, quoting Strickland v. Washington (1984) 466 U.S. 668, 697.) To establish the requisite prejudice, "[i]t is not sufficient to show the alleged errors may have had some conceivable effect on the trial's outcome; the defendant must demonstrate a 'reasonable probability' that absent the errors the result would have been different." (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.)
Alleged "Vouching"
Burch's Testimony
During Burch's examination, the prosecutor inquired, "Did I tell you that if I thought you were lying, what was going to happen," to which Burch answered "You were going to take me to trial." The prosecutor went on to ask if Burch told him everything he could recall in their initial meeting and if he was truthful to which Burch replied, "Yes, sir." The following colloquy occurred:
"[People:] Did I ask you if you wanted to essentially ride this train to the end, meaning sit over there and go to trial and roll the dice?
"[Burch:] Yes, sir.
"[People:] What did you say?
"[Burch:] 'No, sir.'
"[People:] Was that because you didn't shoot anybody?
"[Burch:] Yes, sir.
"[People:] Was that because you didn't want Danny to get killed?
"[Burch:] Yes, sir.
"[People:] Now, you've agreed to take nine years as long as you're truthful. You understand that you have some liability because you made a phone call to those boys, right?
"[Burch:] Yes, sir
"[People:] If you could take it back, would you?
"[Burch:] Yes, sir.
"[People:] Do you understand that testifying, you're now cooperating?
"[Burch:] Yes, sir.
"[People:] So based on your earlier testimony, what does that make you?
"[Burch:] A snitch. [¶] . . . [¶]
"[People:] You've been truthful with us here today?
"[Burch:] Yes, sir."
Defendant asserts the "above testimony was elicited by the prosecutor immediately after Burch described the shooting and identified appellant as the shooter, and the unmistakable import of this exchange was that the prosecutor personally believed Burch when he incriminated appellant and the prosecutor gave him a plea deal as a result," which defendant contends constituted impermissibly injecting his own personal beliefs and impermissible vouching.
Lane's Testimony
Lane confirmed the district attorney had spoken to him and another district attorney about his own first degree murder case about three weeks before trial. The prosecutor then inquired, "And did I tell you that a lot of [the deal] depended on whether you're going to be honest, right?" to which Lane replied, "Yes." Counsel continued by asking if Lane, "then answer[ed] all of the questions that both myself and the other lawyer asked," and Lane replied, "Yes, sir." Finally, the prosecutor asked, "And were you honest?" to which Lane once again replied, "Yes, sir."
Defendant notes this exchange occurred after Lane identified defendant as the shooter and described the weapon defendant used. On appeal, he contends "the unmistakable import of the . . . testimony, particularly in light of the prior testimony from Burch and Frazier, was that the prosecutor believed Lane was being honest in his pre-trial statements that incriminated appellant in the shooting" and this constituted impermissible injecting of his opinions into evidence and impermissible vouching.
Later, during Lane's testimony, the prosecutor began to ask, "Now, in terms of the deal that you made when I came and talked to you, did I tell you that the only reason I want to talk to you is, I didn't think that." At that point, defense counsel objected to the question as "[l]eading and suggestive," and the trial court sustained the objection. The trial court similarly sustained defense counsel's objection to the prosecutor's next attempted question—"Did I tell you that—did I say anything about whether I was going to give you a deal because I didn't think you were"—for the same reason. Defendant also contends this was an "attempt by the prosecutor to again inject himself, his opinions, and his own sense of justice into the evidence."
Frazier's Testimony
During Frazier's testimony, the prosecutor asked, "Downstairs, did I tell you because you were honest about [Burch], asking why did he shoot, '[t]hat's why I gave [Burch] a deal'?" and "I told you, 'Just because you're honest—' [¶] . . . [¶] 'that you helped out [Burch] about being honest,' right?" Frazier responded, "Yes" to both questions.
Defendant asserts this exchange, corroborating Burch's testimony, shows the prosecutor again "personally believed Frazier was being honest . . . and that was part of the reason the prosecutor gave Burch a plea deal," and this constituted impermissible injecting his own opinions and beliefs and impermissible vouching.
Generally, "[i]mpermissible 'vouching' may occur where the prosecutor places the prestige of the government behind a witness through personal assurances of the witness's veracity or suggests that information not presented to the jury supports the witness's testimony." (People v. Fierro (1991) 1 Cal.4th 173, 211, disapproved on other grounds in People v. Thomas (2012) 54 Cal.4th 908, 941.) Similarly, evidence of a prosecutor's subjective motivations when prosecuting a case is not relevant, for "[i]t is misconduct for prosecutors to bolster their case 'by invoking their personal prestige, reputation, or depth of experience, or the prestige or reputation of their office, in support of it.' [Citation.] Similarly, it is misconduct 'to suggest that evidence available to the government, but not before the jury, corroborates the testimony of a witness.' [Citation.] The vice of such remarks is that they 'may be understood by jurors to permit them to avoid independently assessing witness credibility and to rely on the government's view of the evidence.' " (People v. Bonilla (2007) 41 Cal.4th 313, 336 (Bonilla).)
It is not improper, however, for a prosecutor to question a prosecution witness about a plea deal he or she has entered into in exchange for his or her testimony at trial. Such deals also invariably turn on a witness testifying "truthfully." Accordingly, letting the jury know that a witness has assured the prosecutor he or she is telling the truth does not constitute impermissible vouching. (Bonilla, supra, 41 Cal.4th at pp. 336-337; People v. Frye (1998) 18 Cal.4th 894, 971-972, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Price (2017) 8 Cal.App.5th 409, 461 [rejecting claim of impermissible vouching where prosecutor asked witness to " 'testify about what he told her would happen if he believed she was lying' "].)
Thus, there was nothing improper in the prosecutor eliciting testimony by Burch, Lane and Frazier that they were testifying pursuant to plea deals in connection with which they had promised to tell the truth during their trial testimony. We must observe, however, that the prosecutor's questioning in this regard was far more prolonged than necessary to make the point that each of these witnesses had entered into a plea deal wherein he agreed to testify for the prosecution and to do so truthfully, and the questioning came perilously close to crossing the line and constituting vouching.
Inspector Basa's Testimony
Defendant contends two exchanges between the prosecutor and Inspector Basa constituted misconduct. The first occurred when the prosecutor asked Basa about a conversation the two had after interviewing Frazier, namely that when Frazier told them Burch asked defendant " 'Why'd you shoot?' " It was the first instance in which they had heard of that question being asked. The prosecutor went on to ask Basa, "And did I tell you that, to me, it meant that Dante wasn't as culpable as we initially thought?" and Basa responded "Yes, sir." The second exchange occurred when Basa went on to testify as to the prosecutor's interview style—that he does not tell interviewees "any specifics," but merely asks them questions—and that in the joint interviews they usually did not record conversations as it "decrease[s] the chance[s] that people are going to talk to you," and that in the approximate 20 interviews the two conducted together they informed the interviewees they were not being recorded. Basa also acknowledged the two did not take notes of the conversation as that distracts the witnesses.
Defendant contends the first exchange constituted impermissible vouching and the second impermissibly portrayed the prosecutor "as an experienced and noble seeker of the truth, and it ultimately also had the effect of inviting the jury to trust the prosecutor's version of the truth and to defer to the prosecutor's superior legal knowledge and experience rather than exercising their own independent judgment."
We agree that this questioning by the prosecutor was improper. Neither the prosecutor's personal opinion as to the extent of Burch's culpability nor the prosecutor's personal interview style was relevant, and the only significance that can be attached to this testimony is that it was an effort to bolster the prosecutor's belief in the strength of the case.
Despite the prosecutor's missteps in questioning Lane, Frazier, Burch and Inspector Basa, the testimony elicited went toward the veracity of Lane, Frazier, and Burch's testimony either identifying defendant as the shooter or identifying the weapon defendant used to shoot Danny. However, defendant, himself, took the stand and corroborated this testimony. Accordingly, even if there was prosecutorial misconduct, there was no possible prejudice to defendant.
Remarks During Closing Argument
"Misstatements" of the Law
First , while giving an example of second degree murder, the prosecutor stated, "Let's say that there's a conversation. Hey, I bet you I can shoot a bullet in between those people and not hit anybody. No, you can't. No, no, watch. I take a gun, and I fire at a crowd. All right. And I hit somebody, and I kill somebody. All right. The law says you need an intentional act . . . that it's dangerous to human life, . . . that you deal with the knowledge of danger. Everybody knows you point at a crowd, pull the trigger, it's dangerous. And you do it with conscious disregard. The law says under those circumstances, that qualifies as a second degree murder. I didn't have any intent to kill, I shouldn't be convicted of a murder is my position. I wasn't trying to hit anybody. But certain acts are so dangerous, the law says, no, you knew or you should have known what the consequences were going to be." (Italics added.)
Defendant asserts the italicized portion misstated the law because "[i]mplied malice requires the defendant actually know his conduct was dangerous to human life." We agree the prosecutor misspoke. (See People v. Knoller (2007) 41 Cal.4th 139, 143 [defining implied malice as " ' "an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life" ' "].)
However, the prosecutor went on to give a second example, which defendant does not challenge: "Another textbook example. Movie theatre full of people. I run in and I say, fire, fire, fire, I start screaming. There's no fire. I cause a panic, people start running for the exits, somebody gets trampled and dies. Is it an intentional act? Absolutely. Is it dangerous to human life. . . ? You know it's dangerous, done with [the] knowledge of the danger? Of course I know it's dangerous. That's why I did it. I wanted to see what would happen. Conscious disregard. You know what's happening, and you do it anyway. [¶] The law says that's implied malice. Certain acts are so dangerous to human life and are so clearly dangerous that if you do them, you're doing them independent of the danger, you don't care."
Given the entirety of the prosecutor's illustration and that the jury was correctly instructed on the law and told that if the attorneys made any assertion that was contrary to the court's instructions, the instructions controlled, the error in connection with the prosecutor's first example was not prejudicial. (See People v. Osband (1996) 13 Cal.4th 622, 717 [when argument is contrary to instructions, we ordinarily presume jury followed instructions].)
Second , the prosecutor stated "I'll spend a little bit of time and talk about how you sort of have factors in mitigation [of murder], so to speak, to get to [] manslaughter. It's a limited concept. I say limited because, otherwise, anybody can come in and just make something up about, A, you know, I was angry when I did this; or, you know, it was a sudden fight; and, I didn't know what was going on. It's an unlawful killing without malice. No intent to kill, no express malice, no implied malice. All right. [¶] There are two types, generally. Sudden quarrel or heat of passion. . . ."
Defendant contends the italicized statement was "legally erroneous because as recently held by our Supreme Court, the crime of voluntary manslaughter in fact requires either an intent to kill or a conscious disregard for life, i.e., implied malice."
In our view, defendant misreads what the prosecutor was saying. The prosecutor was characterizing defendant's position—i.e., that he had no intent to kill, he had no express malice and he had no implied malice. In short, we do not read this passage as any pronouncement on the law by the prosecutor.
In any case, the jury was also instructed on voluntary manslaughter and on both express and implied malice. And, as we have observed above, the jury was instructed that if the attorneys made any assertion that was contrary to the court's instructions, the instructions controlled. Accordingly, even if the prosecutor's statement could reasonably be understood as a statement on the law, any erroneous legal assertion was not prejudicial.
Third , when the prosecutor tried to respond to defendant's defense theory of the case—imperfect self-defense—he stated: The defense says "I didn't intend to kill him, I just wanted to scare him, and I was afraid for my friend. . . . [¶] Right? That's the starting point. Defendant's words. . . . The problem for him is that the law says that a manslaughter, for every type of manslaughter is an objective standard. It's not subjective. It's an objective standard based on a reasonable person of an average disposition. Otherwise, like I said, it's a limited concept, but if we don't have an objective standard based on reasonable person and an average disposition, then the exception meets the rule. Anybody can come in and say, well, you know, it may not be reasonable what I did, but I thought it was reasonable."
Defendant asserts this "argument improperly suggested the jury could not find [the defendant] guilty of the lesser included offense of voluntary manslaughter based on imperfect self-defense [sic] unless they found appellant acted reasonably."
The court gave CALCRIM instruction No. 571, which states, in relevant part: "The difference between complete defense of another and imperfect defense of another depends on whether the defendant's belief in the need to use deadly force was reasonable," and "[t]he defendant acted in imperfect defense of another if: [¶] 1. He actually believed that Dante Burch was in imminent danger of being killed or suffering great bodily injury; [¶] AND [¶] 2. He actually believed that the immediate use of deadly force was necessary to defend against the danger; [¶] BUT [¶] 3. At least one of those beliefs was unreasonable."
Viewed in context with this instruction, which defendant does not challenge, the absolute best that can be said about the prosecutor's argument is that it was obtuse and confusing. Clearly, it would have been far preferable if the prosecutor had focused on the three elements of the defense and used the language of the instruction.
However, again, any error in the prosecutor's argument was not prejudicial. The jury was instructed on voluntary manslaughter and the imperfect defense of another and heat of passion defenses, as well as on express and implied malice. We must presume the jury followed those instructions.
Urging Jury to Consider Consequences
Defendant claims the prosecutor also improperly asked the jury to "consider the consequences and punishments that would result from their verdict." Citing People v. Lloyd (2015) 236 Cal.App.4th 49 (Lloyd), he contends the prosecutor impermissibly equated finding him not guilty on the basis of his defense of another, with finding him " 'innocent.' "
In his opening argument, the prosecutor stated: "So, defense of another. To be clear, defense of another means you're saying this man should walk out the door. Defense of another, according to the law, is an absolute defense. Oh, he had a right to shoot him. He had a right to kill him, so he's absolutely not, not only just not guilty, he's innocent. If you decide that defense of another applies, you're saying, I was justified, I get to go home now. That's what defense of another is. It's not a manslaughter. It's an absolute defense. So let's talk about that." (Italics added.) He similarly asserted: "Daniel Bradford was shot four times. His life ended on June 14th, 2011. He doesn't get to go home to his family anymore. Defendant's response is: Send me home, send me home. I don't think you're going to do that."
In his final closing, the prosecutor argued: "The defense in this case is [defendant] had an absolute right to shoot Danny Bradford. He should go home." And similarly, "Now, upon reflection, Danny Bradford, the terrible irony is, Danny Bradford jumped in to protect his brother. He did it the way old school people know, with his fists. He jumped in, punched [Burch], and now his defense is, well, I didn't want to jump in because he's too big, so it's okay if I shot him. He went there to jump in, and he didn't. So his position is, I get to end Daniel Bradford for jumping in. . . . And you should give him a pass for not jumping in."
In Lloyd, supra, 236 Cal.App.4th 49, the Court of Appeal concluded the prosecutor committed misconduct by "repeatedly" arguing in ways that "diminished the reasonable doubt standard," both during her closing and rebuttal arguments by misstating the reasonable doubt standard when she stated, for instance, " 'If you find there is self-defense, you are saying his actions, the defendant's conduct was absolutely acceptable,' " and " '[Defense counsel] talks about, you know, voting not guilty is not saying that you condone his behavior. Well, what does not guilty mean? It means you didn't commit a crime.' " (Id. at pp. 52, 62.) The appellate court also concluded this misconduct was prejudicial, given other errors that occurred and because of the "close[ness]" of the case. (Id. at pp. 52, 62-64.)
Here, defense counsel asserted in his closing argument that: "Our position is, my client, based on the law as applied to the facts is arguably not guilty of any crime. That the homicide . . . was justifiable."
It thus appears the prosecutor was anticipating and responding to defendant's defense theory. Nevertheless, "[a] not guilty verdict is not the equivalent of finding the defendant innocent. [Citation.] A not guilty verdict simply means the prosecution did not prove the defendant's guilt beyond a reasonable doubt." (Lloyd, supra, 236 Cal.App.4th at p. 62; Kansas v. Marsh (2006) 548 U.S. 163, 180, fn. 7.) The prosecutor's assertions during closing arguments are markedly similar to those made by the prosecutor in Lloyd and were improper for the reasons discussed in that case.
However, unlike Lloyd, this was not a "close case." (Lloyd, supra, 236 Cal.App.4th at p. 63.) On the contrary, given the overwhelming evidence against defendant, including his own testimony, it is not " 'reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.' " (People v. Wallace (2008) 44 Cal.4th 1032, 1071.) Thus, even when considered cumulatively, the prosecutor's missteps in this case do not rise to the level of prejudicial error. Marsden Motion
Given the number of prosecutorial missteps, however, we are compelled to point out that " '[t]he duty of the district attorney is not merely that of an advocate. His duty is not to obtain convictions, but to fully and fairly present to the court the evidence material to the charge upon which the defendant stands trial. . . . In the light of the great resources at the command of the district attorney . . . restraints are placed on him to assure that the power committed to his care is used to further the administration of justice in our courts and not to subvert our procedures in criminal trials designed to ascertain the truth.' " (People v. Kasim (1997) 56 Cal.App.4th 1360, 1378, quoting In re Ferguson (1971) 5 Cal.3d 525, 531, italics added.)
After the verdict but before sentencing, defense counsel made an oral motion for a new trial, which the court denied. Defendant then addressed the court stating, "I would like to file a motion for a new trial on the grounds that my accusatory pleading was vaguely drawn, also on the ground my attorney told me my probation report was unavailable before sentence, which left me unable to find misconduct in my trial. [¶] Also, I would like to file a motion on 11816 due to the fact my charging wasn't proven beyond a reasonable doubt. Also, on the err[oneous] denial on my motion for an acquittal. [¶] Most importantly, your Honor, I would like to file a motion for a new trial on the grounds of ineffective [assistance] of counsel due to the fact my attorney, [] violated my Sixth Amendment rights to a speedy trial to bring witnesses on my behalf. [¶] [Defense counsel] also of course lead me to a false confession, which led to error admission of my confession, which is a prejudice error. [¶] Furthermore, seeing as I have another case pending, I would like to go to a Marsden hearing, because I can no longer be represented by [defense counsel]." The court inquired, "In that case you mean? A Marsden hearing in that?" Defendant responded, "Yeah, in this case, that case, just overall in general."
The court later stated, "I want to address, [defendant] made a number of requests, motions here. Some of the motions I feel have been addressed by [defense counsel], and I have already denied those. Specifically, a motion for new trial, a motion for reduction of the verdict for which [defendant] stands convicted. [¶] There's been a mention made for a request for new trial based on ineffective assistance of counsel. There having been no grounds for that, I sat through the trial, and I observed how the trial was conducted, specifically by [defense counsel], and having in mind the—basically what this case was about and how the testimony was presented and what issues they were and how they were dealt with, and I see no reasonable ground that I can perceive, based on my observations, why there should be any colorable claim that might be pursued on a motion for new trial. [¶] There being no grounds for granting a motion for new trial on that ground, that request is denied. Similarly, at this stage, the defendant's request for a Marsden hearing I think is tied up in that. I see no basis for conducting such a hearing, there are no allegations made of why that should be done. It seems to be mainly directed at the new case which is pending across the hall."
At that point defendant stated, "No sir, it's not. I said my Sixth Amendment rights are violated due to the fact that I was not fortunate to get a speedy trial, or I was not given an opportunity to bring witnesses on my behalf." The court then stated, "Okay. I don't need a Marsden hearing to consider those issues, and based on the records in this case and my familiarity with the case and the fact that how the trial was conducted, that motion is denied as well; motion to appoint different counsel. [¶] And again, for what purpose? I see no grounds for pursuing a claim of ineffective assistance of counsel. I see no grounds for pursuing any other motion for new trial or reason to appoint different counsel to pursuing any of those things, and I'm not going to do it."
In People v. Washington (1994) 27 Cal.App.4th 940, 944 (Washington) this court held that a trial court's failure to hold a postconviction Marsden hearing was harmless where the defendant "ha[d] made no showing . . . either that his Marsden motion would have been granted had it been heard, or that a more favorable result would have been achieved had the motion in fact been granted." In that case, the defendant made a motion for a new trial at the same time he made a Marsden motion. When the court was next in session, the court ruled on the motion for new trial but failed to hear the Marsden motion, and neither the defendant nor his attorney indicated he still wanted to dismiss his attorney. (Washington, at pp. 942-943.) The appellate court concluded failure to hear the Marsden motion was harmless because the "basis for such a motion at such a time could have been only that his attorney had acted incompetently at trial or in filing the motion for new trial [citation] or, possibly, that Washington believed that counsel would be unable to represent him properly at sentencing." (Id. at p. 944.) Indeed, the court went on to note, "We cannot see how the appointment of a different attorney would have gained Washington a new trial, or could have had any effect on the sentence imposed. . . ." (Ibid.)
Here, the Attorney General points out that "the only 'future proceeding' that remained was the imposition of sentence," as defense counsel had already moved for a new trial and requested a more lenient sentence. Further, the sentence defendant received "was the lowest possible penalty for a first degree murder conviction and the related enhancement for personal use of a firearm."
We therefore reach the same conclusion that we did in connection with the post-verdict Marsden motion in Washington—given that defendant had already made a new trial motion that had been heard and ruled on, that he identified the bases for his envisioned new trial motion to be prepared by different counsel, that the court opined it saw no basis for such a motion, that only sentencing hearings remained going forward, that defendant was given a full opportunity to address the court at the time of sentencing and essentially made the same points his attorney made and that the court imposed the lowest penalty allowed by law, there was no prejudicial error even under the heightened Chapman standard. (See Washington, supra, 27 Cal.App.4th at p. 944). Additionally, defendant remained free to make a Marsden motion in his other criminal matter. Retroactivity of Section 12022.53
Chapman v. California (1967) 386 U.S. 18, 24.
Subsequent to briefing, defendant advised the court of a new case, People v. Armijo (2017) 10 Cal.App.5th 1171. In Armijo, the defendant claimed his no contest plea and conviction should be vacated because the trial court committed reversible error in failing to hold a Marsden hearing. The defendant sent two letters to the court before the pretrial hearing, requesting that his public defenders be discharged and new counsel appointed. (Armijo, at pp. 1173, 1175-1176.) Before the court ruled on the "motions," the first two public defenders were replaced, thus mooting the first "motion." The second letter asked that a third public defender be replaced, catalogued complaints about her representation, and stated his frustration with the lack of reliable counsel and a pattern of unwanted continuances. (Id. at pp. 1175-1176, 1180.) The Court of Appeal ruled the trial court's failure to hold a Marsden hearing in connection with that "motion," was not harmless beyond a reasonable doubt. (Armiji, at p. 1183.) "[B]ecause the record largely is limited to Armijo's complaint letters, we do not know what other evidence Armijo could have offered had he been afforded a Marsden hearing. It is conceivable that he could have provided at the hearing 'knowledge of conduct and events relevant to the diligence and competence of his attorney[s] which are not apparent' from the 'bare complaint[s]' and that would have tipped the balance in favor of appointment of substitute counsel." (Ibid.) Accordingly, the court conditionally reversed the judgment with directions to the trial court to hold a hearing and appoint new counsel if it concluded the assistance rendered by his previous attorney was inadequate, and if it did not so find, to reinstate the judgment. (Id. at pp. 1183-1184.) Here, in contrast, defendant made a postverdict Marsden motion. Accordingly, we have a distinctly different record than the one in Armijo, and Washington is the more apposite authority. --------
Prior to January 1, 2018, trial courts did not have authority to strike or dismiss a firearm enhancement under section 12022.53. (Former § 12022.53, subd. (h), added by Stats. 2010, ch. 711, § 5 and amended by Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018.) Effective January 1, 2018, Senate Bill No. 620 amended subdivision (h) of section 12022.53 to add the following language: "(h) The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.53, subd. (h); Sen. Bill No. 620 (2017-2018 Reg. Sess.) § 2.)
Defendant cites the rule enunciated in In re Estrada (1965) 63 Cal.2d 740, in asserting Senate Bill No. 620 requires retroactive effect. Under Estrada, "[i]f the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then, in our opinion, it, and not the old statute in effect when the prohibited act was committed, applies." (Estrada, at p. 744.) The Attorney General agrees Senate Bill No. 620 should be applied retroactively and that defendant "is entitled to remand and resentencing under amended section 12022.53, subdivision (h)." We also agree, and therefore reverse and remand for the court to consider whether to strike the firearm enhancement and, thus, modify defendant's sentence.
DISPOSITION
The judgment is affirmed. The matter, however, is remanded for the trial court to consider resentencing under amended section 12022.53, subdivision (h).
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Margulies, J.