Opinion
F073299
06-21-2018
THE PEOPLE, Plaintiff and Respondent, v. MYRON POWELL, Defendant and Appellant.
Charles M. Bonneau III, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MF011816A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Cory J. Woodward, Judge. Charles M. Bonneau III, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant Myron Powell appeals from his conviction for battery by a prisoner on a nonconfined person. (Pen. Code, § 4501.5) Appellant contends the trial court improperly permitted the prosecutor to impeach him with a prior conviction for assault on a police officer from over 30 years ago and that the prosecutor committed misconduct by improperly misstating the law. Appellant also seeks review of the Pitchess hearing conducted by the trial court. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The incident leading to appellant's charges arose after appellant, an inmate, was transferred to the California City Correctional Facility. During his intake process he claimed to need a lower bunk assignment for medical reasons and indicated to a processing officer that he had the proper paperwork, called a 128-C form or a chrono, but that it was in transit from an out-of-state facility. That processing officer did not see a record of this paperwork in the computers and attempted to assign appellant an upper bunk. This conflict resulted in a dispute that was told differently by the two officers involved and appellant.
According to the officers, appellant became angry that he was not being provided a lower bunk. He was taken to meet with a supervisor, who assigned appellant a lower bunk. Appellant was then moved to a temporary holding cell to retrieve some of his property. In that process, appellant was still angry about the situation. When being placed in the cell, appellant swung his arm backwards and struck one of the officers in the chest. The officer responded by pepper spraying appellant. Appellant then kicked the cell door as it was being locked. A later medical inspection found abrasions on appellant that were possibly consistent with him either kicking the cell door or kneeling down.
According to appellant, he was not combative with the officers but was speaking with an elevated voice and cursing at them due to his medical need for a lower bunk. After receiving his lower bunk assignment, he told the processing officer, "I told you I had a chrono." The officer responded by saying, "Yah, we'll see," or "We'll wait and see." Appellant then attempted to retrieve his belongings from the floor, as he stood up he was pepper sprayed by the processing officer. Appellant claimed he never kicked the cell door and could not explain his abrasions.
As part of his testimony, appellant admitted to several prior convictions. These included a conviction for possession of a firearm by a felon in 2013, transportation of cocaine base in 2009, conspiracy to sell a controlled substance in 2001, the sale of narcotics in 1993, and assault on a peace officer with force likely to cause great bodily injury in 1986. Appellant had sought to exclude reference to these convictions in a pretrial motion. The court admitted several prior convictions, including the 1986 conviction, on the ground they were not unduly prejudicial.
Finally, as part of the pretrial discovery process, appellant requested any evidence or complaints of dishonesty or excessive or unnecessary force or violence on the part of the two officers present when he was pepper sprayed. The trial court reviewed this request and determined there was a sufficient showing to review the officer's personnel files. This review occurred in a sealed Pitchess hearing and resulted in a determination by the trial court that no relevant documents were present for production.
Appellant was ultimately convicted by a jury and sentenced. This appeal timely followed.
DISCUSSION
Appellant alleges the trial court erred by admitting the oldest of his prior convictions. Separately, appellant contends his trial was marred by the prosecutor's closing argument due to a misstatement of applicable law. Finally, appellant requests a review of the Pitchess procedures undertaken by the trial court. We take each issue in turn. Admission of Appellant's Prior Conviction From 1986
Prior to trial, appellant sought to exclude any reference to his 1986 conviction for assault on a police officer. The trial court denied this request. Appellant contends this ruling constituted an abuse of discretion.
Standard of Review and Applicable Law
"A witness may be impeached with any prior conduct involving moral turpitude whether or not it resulted in a felony conviction, subject to the trial court's exercise of discretion under Evidence Code section 352. [Citations.]
" '[T]he admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude. Beyond this, the latitude [Evidence Code] section 352 allows for exclusion of impeachment evidence in individual cases is broad.' [Citations.] When determining whether to admit a prior conviction for impeachment purposes, the court should consider, among other factors, whether it reflects on the witness's honesty or veracity, whether it is near or remote in time, whether it is for the same or similar conduct as the charged offense, and what effect its admission would have on the defendant's decision to testify. [Citations.] Additional considerations apply when the proffered impeachment evidence is misconduct other than a prior conviction. This is because such misconduct generally is less probative of immoral character or dishonesty and may involve problems involving proof, unfair surprise, and the evaluation of moral turpitude. [Citation.] As we have advised, 'courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.' [Citation.]
"Because the court's discretion to admit or exclude impeachment evidence 'is as broad as necessary to deal with the great variety of factual situations in which the issue arises' [citation], a reviewing court ordinarily will uphold the trial court's exercise of discretion." (People v. Clark (2011) 52 Cal.4th 856, 931-932, fn. omitted (Clark).)
"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: . . . the error or errors complained of resulted in a miscarriage of justice." (Evid. Code, § 353, subd. (b).) "[A] miscarriage of justice should be declared only when the court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Rains (1999) 75 Cal.App.4th 1165, 1170.)
The Trial Court Did Not Abuse Its Discretion
At the outset, we note that appellant properly concedes his prior conviction constitutes a crime of moral turpitude and thus is admissible subject to the restrictions of section 352. Appellant argues, however, that the remoteness of the conviction, the fact it was the oldest of several convictions used for impeachment purposes, and the similarity of the conviction to the charged offense render it an abuse of discretion for the trial court to conclude its probative value is not substantially outweighed by the prejudice arising from its use for impeachment. We do not agree.
With respect to the age of the conviction and its status as only one of several convictions used for impeachment purposes, "convictions remote in time are not automatically inadmissible for impeachment purposes. Even a fairly remote prior conviction is admissible if the defendant has not led a legally blameless life since the time of the remote prior." (People v. Mendoza (2000) 78 Cal.App.4th 918, 925-926.) In Mendoza, the court upheld the admission of 10 prior felony convictions, including convictions that occurred 16, six, four, and two years before the charged offenses. (Id. at pp. 922-923, 927-928.) As is often recognized, "a series of crimes may be more probative of credibility than a single crime." (Clark, supra, 52 Cal.4th at pp. 932-933 [citing cases].) Concerning any similarities between the prior conviction and the current charges, while such a factor is relevant, prior convictions for identical or similar offenses are not automatically excluded as unduly prejudicial under Evidence Code section 352. (People v. Green (1995) 34 Cal.App.4th, 165, 183 [" 'The identity or similarity of current and impeaching offenses is just one factor to be considered by the trial court in exercising its discretion' "].)
In this case, the court explicitly considered admissibility of the prior convictions under section 352 and concluded admissibility was proper. While admission is a debatable decision considering the age of the crime and its similarity to the charged offense, the conviction supports the inference that appellant was consistently engaging in morally flawed behavior, reflects on appellant's trustworthiness as a witness, is otherwise admissible for impeachment purposes, and its admissibility did not prevent appellant from testifying. Furthermore, appellant's trustworthiness was already called into question through his other convictions and there was evidence in the form of injuries to appellant's body that were consistent with the allegation he was the aggressor in the incident, both of which reduced the potential prejudice arising from admission for impeachment purposes. Accordingly, we do not conclude the trial court's decision to admit the evidence exceeds the bounds of reason or otherwise shows a miscarriage of justice. Alleged Prosecutorial Misconduct
Appellant next argues the prosecutor engaged in prejudicial misconduct by wrongly telling the jury the law requires them to adopt interpretations of circumstantial evidence that point to guilt, rather than innocence, when two reasonable competing inferences are available. Appellant concedes no objection was raised to the disputed argument, but contends the lack of objection demonstrates ineffective assistance of counsel. We conclude the argument was forfeited, but that any error was harmless regardless.
Standard of Review and Applicable Law
"Advocates are given significant leeway in discussing the legal and factual merits of a case during argument. [Citation.] However, 'it is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its . . . obligation to overcome reasonable doubt on all elements.' " (People v. Centeno (2014) 60 Cal.4th 659, 666 (Centeno).)
"The standards under which we evaluate prosecutorial misconduct may be summarized as follows. A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor 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 trial court or the jury. Furthermore, and particularly pertinent here, 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. Morales (2001) 25 Cal.4th 34, 44 (Morales).) Thus, "When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.' " (Centeno, supra, 60 Cal.4th at p. 667.)
"To preserve a misconduct claim for review on appeal, ' "a defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the improper argument." ' " (People v. Forrest (2017) 7 Cal.App.5th 1074, 1081.)
Discussion
During his rebuttal closing arguments, the prosecutor made the following argument to the jury concerning direct and circumstantial evidence:
"One very important thing I want to cover before I conclude my argument because I don't want you—I don't think [defense counsel] did it intentionally. I think he recognized his error and tried to correct it. I don't want you to be misled by this. There are two types of evidence. You've got instructions. There is direct evidence such as [the responding officer] saying, 'I was there, this guy hit me, and I sprayed him after he hit me.' That's direct evidence. It's testimony of a witness who was there and saw it happen.
"Then there's such a thing as circumstantial evidence. Circumstantial evidence is—I'm trying to think of an example of what circumstantial evidence might have even come up in this case. It's evidence of some fact from which you conclude another fact. If—well, typical example would be, you know, okay a person is seen with a gun. They throw it away after—you know, they throw it down on the sidewalk, and the police catch the person and get the gun and connect the gun with a murder, okay? It's a circumstantial connection. That's the law. That's the law that is shown in exhibit—excuse me—in Instruction 224, I believe, that says if you have circumstantial evidence which points in one direction toward guilt and another direction toward innocence, and they are both reasonable conclusions, then you have to adopt the circumstantial evidence that leads to the finding of guilt, but this case isn't about circumstantial evidence. You've got two stories. You've got three people who told the two stories. Two people are correctional officers. They're experienced officers. They don't have a motive to lie, and they said that it was—that the facts of the case were the defendant was struck. Then you have another person who was there, he is a convicted felon and may have some credibility problems, besides that. He says that it didn't happen that way. Even though he doesn't remember very well, he clearly wants you to believe one of these various versions about where he was standing and what was happening when he got sprayed in the face.
"Ladies and gentlemen, there is only one reasonable conclusion to draw from the evidence in the case and, again, I urge you to consider credibility first and foremost. The credible witnesses in this case tell a consistent story that points to guilt beyond a reasonable doubt."
No objection was raised to the argument.
As an initial matter, appellant contends his argument should not be forfeited because a prosecutor's closing argument is akin to an improper instruction and thus warrants review even without objection. We do not agree. A closing argument is exactly that, argument, and is expressly described to the jury as such. It is thus incumbent upon opposing counsel to object to errors in closing arguments where feasible and appropriate, as such errors are typically curable by a proper admonition or clarification from the trial court. (See Centeno, supra, 60 Cal.4th at p. 674 [finding failure to object to misstatement of the law in closing argument was forfeited]; Morales, supra, 25 Cal.4th at pp. 43-44 ["When a defendant believes the prosecutor has made remarks constituting misconduct during argument, he or she is obliged to call them to the court's attention by a timely objection. Otherwise no claim is preserved for appeal"].)
However, even if not forfeited, we would find the alleged error harmless. The prosecutor in this case did wrongly describe the required inference when two reasonable and competing interpretations of circumstantial evidence are available to a jury. In such an instance, the jury should adopt the inference supporting the defendant in order to properly preserve the presumption of innocence. However, the error made was a single flawed description of the standard made in the context of a discussion that both pointed the jury to the actual instruction provided by the court and explained to the jury that the prosecutor believed his case was built not on circumstantial evidence but upon direct evidence that was more credible than the evidence presented by appellant. In the court's instructions, it properly detailed the inference the jury should make with respect to competing inferences in circumstantial evidence and further instructed the jury that the court, not the parties' arguments, stated the relevant law, explaining, " 'You must follow the law as I explain it to you even if you disagree with it. [¶] If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions.' " Given that the prosecutor relied upon a direct evidence theory predicated on a perceived credibility gap between the officers and appellant and the court both properly instructed the jury and explained its instructions controlled—instructions actually referenced by the prosecutor—there appears no reasonable likelihood that the prosecutor's misstatement of the law on circumstantial evidence caused the jury to jury misunderstand or misapply the complained-of comments in an improper or erroneous manner.
Having concluded appellant's arguments are meritless, we need not reach his ineffective assistance of counsel argument. (People v. O'Malley (2016) 62 Cal.4th 944, 1010, fn. 12.) Likewise, having found no error worthy of reversal here and no error in the admission of appellant's prior conviction, appellant cannot demonstrate the cumulative effect of the alleged errors resulted in prejudice. (See In re Reno (2012) 55 Cal.4th 428, 483 ["As noted, claims previously rejected on their substantive merits—i.e., this court found no legal error—cannot logically be used to support a cumulative error claim because we have already found there was no error to cumulate"].) Independent Pitchess Review
Finally, in the pretrial discovery process, appellant requested and was granted a review of confidential personnel files relating to the officers involved in the incident leading to his charges. No documents were produced from that review. Appellant requests we independently review the Pitchess hearing conducted by the trial court.
Standard of Review and Applicable Law
Pitchess motions are the well-settled mechanism by which defendants can screen law enforcement personnel files for evidence that may be relevant to their defense without compromising the officer's reasonable expectation of privacy in those records. (People v. Mooc (2001) 26 Cal.4th 1216, 1225 (Mooc).) Subject to various restrictions not relevant here, a trial court must conduct an in camera review of potentially relevant personnel files if the defendant makes a showing of good cause for the discovery. (Id. at p. 1226.)
This process is effectuated by having a custodian of records collect all potentially relevant documents from identified personnel files and present them to the trial court. "The custodian should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendant's Pitchess motion." (Mooc, supra, 26 Cal.4th at p. 1229.)
The trial court must then make a record of what documents it has examined to permit future appellate review. (Mooc, supra, 26 Cal.4th at p. 1229.) "If the documents produced by the custodian are not voluminous, the court can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list of the documents it considered, or simply state for the record what documents it examined." (Ibid.) These proceedings are then sealed. (Ibid.)
Upon appeal, we independently examine the record made by the trial court "to determine whether the trial court abused its discretion in denying a defendant's motion for disclosure of police personnel records." (People v. Prince (2007) 40 Cal.4th 1179, 1285.)
The Trial Court Did Not Abuse Its Discretion
We have reviewed the full set of transcripts, files, and statements relevant to this issue. The trial court complied with the required Pitchess procedures. Two custodians of records were present and placed under oath, and several declarations were also submitted. The custodians testified that no potentially responsive documents were found, reviewed the procedures utilized to search for documents, and identified a small number of records that mentioned the officers but were deemed not potentially responsive. The court independently reviewed the personnel files and the identified documents in light of appellant's discovery motion. The court created an accounting of what was reviewed and its determination that there were no documents to produce, including placing on the record the reasons it concluded the potentially relevant documents were not deemed relevant for production. And these proceedings were stenographically recorded. (Mooc, supra, 26 Cal.4th at p. 1229.) Our independent review finds the trial court did not abuse its discretion in determining no documents should be produced. None of the identifying documents mentioning either officer relate to issues of excessive or unnecessary force or violence or to dishonesty and, thus, were properly withheld.
DISPOSITION
The judgment is affirmed.
/s/_________
HILL, P.J. WE CONCUR: /s/_________
LEVY, J. /s/_________
DETJEN, J.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).