Opinion
B188602
5-14-2007
THE PEOPLE, Plaintiff and Respondent, v. SHANTIC PRICE, Defendant and Appellant.
Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr. and Bill Lockyer, Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Karen Bissonnette, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
An information charged Shantic Price in count I with attempted willful, deliberate, premeditated murder, in count II with shooting at an occupied vehicle, and in count III with assault with a semiautomatic firearm. The information included special allegations for personal use and discharge of a firearm, personal infliction of great bodily injury, three prior serious or violent felonies, and two prior prison terms. The jury convicted Price on counts II and III, but deadlocked on count I, and the court declared a mistrial on count I. Following Prices jury waiver, the court found the prior conviction allegations to be true. The court sentenced Price to 52 years to life. Price, who filed a timely notice of appeal, contends the court erred by allowing him to be impeached with a prior conviction without sanitizing it, he received ineffective assistance of counsel because his counsel did not object to instructions about viewing oral admissions with caution, and the prosecutor committed misconduct by distorting evidence and arguing facts not in evidence. We affirm.
FACTUAL BACKGROUND
I. The Prosecutions Case-in-Chief
At about 10 p.m. on March 19, 2005, Ebony Leslie was driving alone in her pickup truck on her way to pick up her fiancé, Roosevelt Kahn. Leslie saw Kahn as she approached 131st Street and Towne Avenue in Los Angeles, and she slowed down. Kahn approached the car. Suddenly, Leslie noticed appellant standing in the street on the passenger side of her truck. Appellant had a gun in his hand. Appellant fired his gun. Appellant shot Leslie six times, in the middle finger of her left hand, her pelvic area, her leg, and her stomach. Leslie could not believe appellant was shooting at her. Appellant kept firing. Kahn began to run away from the truck. Leslie drove away.
Leslie drove to El Segundo Boulevard where she called her aunt and flagged down a sheriffs deputy. Leslie told the deputy what had happened and described the person who shot her as a Black man with a dark complexion and short hair. The description of the assailant as having short hair was broadcast to other deputies. Paramedics arrived and transported Leslie to the hospital.
Leslie asked her aunt to hold onto her wallet while they were waiting for the paramedics to arrive. Later, Leslies aunt found an expended bullet lodged in Leslies wallet and gave it to the deputies investigating the shooting.
Sheriffs deputies went to the scene of the shooting and observed shattered glass in the street and found five .40 caliber shell casings.
Police arrested appellant in an alley shortly after the shooting, after Miguel Gutierrez, who lived on 131st Street near the scene of the shooting, called the Sheriffs Department to report a prowler was hiding in his backyard. Appellant was not wearing a shirt when the deputies arrested him. The deputies found an empty metal automatic handgun by the rear wall of the residence. The deputies tested appellant for gunshot residue.
Detective Thomas Mayberry inspected Leslies truck after the shooting and found an expended bullet on the floorboard behind the drivers seat and booked it into evidence so it could be submitted for testing. Mayberry saw several bloodstains on, and bullet holes in, the center console area and exterior of the truck. Mayberry spoke to Leslie when she was hospitalized and showed her some photographs. Leslie identified appellants photograph as depicting the person who had shot her. Leslie told Mayberry the assailant had a shaved head.
Ballistics testing showed the handgun recovered near the scene matched the casings recovered on the street where Leslie had been shot and the bullets recovered from Leslies truck and wallet. Investigators were unable to lift fingerprints from the gun. It is not unusual for guns to yield no fingerprints due to factors such as atmospheric conditions, the way the gun was handled, whether the gun had a textured grip, and the fact that most weapons have a lot of oil and debris on them.
As a result of her gunshot wounds, Leslie had two surgeries. Leslie was hospitalized on several occasions, including for a five-day stay when she was first shot and a second time to have a bullet removed which was blocking her intestines. When Leslie was released after her first hospitalization, she needed help showering, combing her hair, and performing other basic tasks. Leslie had continuing pain in her stomach and left hand as a result of her injuries; the middle finger on her left hand did not work properly, and she could not bend it.
II. Defense Evidence
Appellant testified on his own behalf. Appellant denied shooting Leslie or being armed on the night of the shooting. Appellant had attended a party on 131st Street that evening. At the party, appellant and a dark-skinned man with short hair argued over a woman. Appellant had not known the other man before that night. The argument started inside. The two men went outside where it escalated. The men were about to fight when the other man fired some shots. Appellant ran away, but the other man followed him. Appellant ended up in someones back yard. Appellant asked the homeowner for help because someone was shooting at him. Appellant left the back yard through an open gate. Appellant encountered sheriffs deputies in a nearby alley and told them where he was coming from and that he had been the victim of a shooting. Appellant was intoxicated when he was booked. Appellant admitted he had been convicted of robbery in 1993 and voluntary manslaughter in 1995.
Gunshot residue tests performed on appellant after his arrest were negative. The lack of such residue did not necessarily mean appellant had not fired a gun before being tested as gunshot particles may fall off a persons skin naturally, or be removed if the person wipes his hands on clothing or some other surface, or washes his hands.
III. Rebuttal
When appellant was booked into jail, he denied having any injuries, medical problems or taking any prescription medication. Appellant did not appear to be under the influence.
The gate to Miguel Gutierrezs backyard was closed on the night of the shooting; Gutierrez generally locked it. On the night of the shooting, Gutierrez used his keys to unlock the gate for the deputies.
DISCUSSION
I. Request to Sanitize Prior Conviction
A. Background
Appellant had a prior manslaughter conviction, which involved his use of a gun. Appellant moved to exclude this prior conviction or, alternatively, to sanitize the conviction by referring to it as a "crime of moral turpitude." The court exercised its discretion under Evidence Code section 352 and prohibited any reference to the use of a firearm. At trial, on direct and cross-examination, appellant admitted he had been previously convicted of voluntary manslaughter.
B. Rule for Sanitizing Prior Conviction of a Witness
Sections 788 and 352 of the Evidence Code govern the admissibility of felony convictions for impeachment. (People v. Mendoza (2000) 78 Cal.App.4th 918, 925.) Evidence Code section 788 permits the prosecution to show a witness has been convicted of a felony to attack his credibility. Evidence Code section 352 gives the trial court broad discretion in assessing whether concerns of undue prejudice, confusion or consumption of time outweigh the probative value of particular evidence. (People v. Dyer (1988) 45 Cal.3d 26, 73.)
A court may sanitize a witnesss prior conviction by allowing the prosecution to refer to it only in a general manner. This act of sanitizing the prior prevents specific information about the prior conviction from prejudicing the jury. Sanitizing allows some fact of a prior conviction to impeach the witness because to exclude completely a prior would give the witness a "false aura of veracity." (People v. Beagle (1972) 6 Cal.3d 441, 453.)
In Beagle, the Supreme Court of California established four factors that control the trial courts determination of whether to sanitize a prior conviction: (1) whether the prior conviction reflects adversely on an individuals honesty or veracity; (2) the nearness or remoteness in time of the prior conviction; (3) whether the prior conviction is for the same or substantially similar conduct to the charged offense; and (4) what effect admission would have on a defendant witnesss decision to testify. (People v. Beagle, supra, 6 Cal.3d at p. 453.) Courts do not need to follow these Beagle factors rigidly. (People v. Mendoza, supra, 78 Cal.App.4th at p. 925.)
C. Standard of Review
The Supreme Court of California stated that when a discretionary power is statutorily vested in a trial court, its exercise of that discretion "`must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124; italics in original.)
D. Analysis
Appellant argues that the court erred in not sanitizing his prior conviction. First, appellant argues voluntary manslaughter has only a tenuous connection to honesty and integrity. Second, appellant asserts that the crime of voluntary manslaughter is "highly similar" to the crimes for which he was on trial. Taken together, appellant concludes that the jury misused the evidence as "probative of a disposition towards violence." However, the court did sanitize the prior by prohibiting any reference to the use of a firearm. Appellant presented no argument that the trial court exercised its discretion in an "arbitrary, capricious or patently absurd manner." (People v. Rodrigues, supra, 8 Cal.4th at p. 1124.) Neither did the appellant show that the exercise of discretion resulted in "a manifest miscarriage of justice." (Ibid.) Because the record shows the trial court used its discretion in making its determination, this court will not disturb the exercise of that discretion.
II. Ineffective Assistance of Counsel
A. Background
Appellant contends he received ineffective assistance of counsel because his counsel did not object to the giving of CALJIC No. 2.71, which defines admissions.
B. Rule for Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) counsels representation fell below an objective standard of reasonableness, and (2) but for counsels unprofessional errors, there was a reasonable probability the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; see also People v. Pope (1979) 23 Cal.3d 412, 425-426.) "In demonstrating prejudice, however, the petitioner must establish that as a result of counsels failures the trial was unreliable or fundamentally unfair. `The benchmark for judging any claim of ineffectiveness must be whether counsels conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Citation omitted.) (In re Visciotti (1996) 14 Cal.4th 325, 352.) The defendants proof must be "`a demonstrable reality and not a speculative matter." (People v. Karis (1988) 46 Cal.3d 612, 656.)
C. Standard of Review
Generally, whether counsels performance was inadequate and whether such inadequacy prejudiced the defense are subject to de novo review. (In re Resendiz (2001) 25 Cal.4th 230, 248-249.) "This determination [if counsels performance fell below an objective standard of reasonableness] generally must be made with deference to avoid the dual pitfalls of second-guessing counsels tactics and chilling vigorous advocacy." (People v. Karis, supra, 46 Cal.3d at p. 657.) "`"Reviewing courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission."" (People v. Lucas (1995) 12 Cal.4th 415, 437.)
D. Analysis
Appellant states his counsel erred by failing to object to CALJIC No. 2.71, which provided:
An admission is a statement made by the defendant which does not by itself acknowledge his guilt of the crimes for which the defendant is on trial, but which statement tends to prove his guilt when considered with the rest of the evidence.
You are the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in whole or in part.
Evidence of an oral admission of the defendant not made in court should be viewed with caution.
Appellant contends that this instruction gave the jury the impression that appellant had made an admission because the jury would necessarily understand the word "admission" as meaning a concession of an unfavorable fact or point and that by the mention of the word, the jury would infer that appellants statement included some acknowledgment of some fact adverse to himself. Additionally, appellant argues that the instruction misled the jury because the final sentence about viewing evidence of an oral admission with caution leads the jury to view the defendants own statements with skepticism.
Appellant argues that because he did not make any admission, the instruction was inapplicable and irrelevant to the facts of the case. Moreover, because the jury "necessarily inferred" that there was an admission, the result was a violation of his Fifth and Fourteenth Amendment due process right to acquittal absent proof beyond a reasonable doubt of every fact necessary to the crime and his Sixth Amendment right to jury fact-finding. Appellant contends there was no tactical reason for counsels failure to object to this instruction. Appellant concludes that there is a reasonable probability that but for counsels alleged error, the result of the proceeding would have been more favorable to the appellant.
The record is silent on the question of why counsel failed to object to this instruction; nevertheless, trial counsel might well have determined not objecting to this instruction was in appellants best interest. Moreover, the trial court expressly instructed the jury that they must determine what facts had been proved from the evidence received at trial and that not all instructions were applicable and directed the jury to disregard any instructions that applied to facts they determined did not exist. (CALJIC Nos. 1.00 & 17.31.) In People v. Brackett (1991) 229 Cal.App.3d 13, 20, the court reasoned, "The use of the term `admission in any instruction to a jury composed of lay persons, including 2.71, in and of itself should not be confusing" because the instruction clearly defines the term.
Where the court gives a legally correct, but irrelevant instruction, the error is "usually harmless." (People v. Rollo (1977) 20 Cal.3d 109, 123; see also People v. Lee (1990) 219 Cal.App.3d 829, 841-842 [this principle is particularly true where the jury is told to apply the instructions as a whole and that all instructions are not necessarily applicable.].)
Thus, assuming arguendo the instruction should not have been given, appellant has not shown that counsels representation fell below an objective standard of reasonableness. (Strickland v. Washington, supra, 466 U.S. at pp. 687-688, 694.) Neither has appellant proved any prejudice that is a demonstrable reality and not simply speculation. (People v. Karis, supra, 46 Cal.3d at p. 656.) Therefore, appellant fails to demonstrate that he received ineffective assistance of counsel.
III. Misconduct
A. Rule for Prosecutorial Misconduct
In order to prove prosecutorial misconduct violated a defendants federal constitutional rights, he must prove the conduct comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." (People v. Harris (1989) 47 Cal.3d 1047, 1084 disapproved on another point in People v. Wheeler (1992) 4 Cal.4th 284, 299, fn. 10.) Even if conduct does not rise to the level of a federal constitutional violation, it will constitute misconduct under state law if the appellant proves the conduct involved "`the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." (People v. Haskett (1982) 30 Cal.3d 841, 866; see also People v. Ledesma (2006) 39 Cal.4th 641, 726).
If a defendant claims the prosecutors misconduct consisted of comments made before the jury, the court should determine if there "is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion."
(People v. Samayoa (1997) 15 Cal.4th 795, 841.) The court should consider how the remarks "`would, or could, have been understood by a reasonable juror. If the remarks would have been taken by a juror to state or imply nothing harmful, they obviously cannot be deemed objectionable." (Citation omitted.) (People v. Cox (2003) 30 Cal.4th 916, 960.) The California Supreme Court gives prosecutors wide latitude in their argument, including reasonable inferences: "It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience." (Internal quotation marks omitted.) (People v. Stanley (2006) 39 Cal.4th 913, 951-952.)
B. Standard of Review
A defendant must show "`a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner." (People v. Brown (2003) 31 Cal.4th 518, 553.) Courts should not lightly infer "`that the jury drew the most damaging rather than the least damaging meaning from the prosecutors statements." (Id., at pp. 553-554.)
C. Analysis
Appellant contends two instances of prosecutorial misconduct during the closing argument.
1. Waiver of Right to Allege Error
Appellant did not object to either of the prosecutors challenged comments. Respondent asserts that the appellant cannot claim prosecutorial misconduct because he waived the claim. Generally, the failure of a defendant to object or timely request an admonition regarding any aspect of the prosecutors argument in a criminal case waives the claim of misconduct on appeal. (People v. Allison (1989) 48 Cal.3d 879, 893.) However, as appellant claims his counsel was ineffective for not objecting, we address the issue on its merits.
2. Prosecutors Statement Concerning the Police Broadcast
The first instance of alleged misconduct was when the prosecutor told the jury that Deputy Montenegro might have broadcasted a description of the suspect as having short hair in order to increase the number of people police stopped in the area.
The record shows that according to Montenegro, Leslie told him a man with short hair shot her. Montenegro broadcast this description to other units, asking them for assistance in searching for the possible suspect. Montenegro testified that the purpose of the broadcast was to give assisting units an indication of a possible suspect. Leslie testified that she did not recall telling Montenegro her assailant had short hair; rather, she said the assailant had a shaved head. Leslie and Detective Mayberry testified that while in the hospital, Leslie told detectives her assailant had a shaved or bald head and identified appellant in a photographic lineup. Additionally, Leslie identified appellant in court. Thus, there was a conflict in the record between Leslies initial description of the assailant as having short hair and her later description of the assailant as having a shaved or bald head.
The judge instructed the jury with CALJIC No. 2.21.1 that they were to consider whether a discrepancy between testimonies "relates to an important matter or only to something trivial." Citing that instruction, the prosecutor argued to the jury that the discrepancy between short hair and a shaved head was minor. The prosecutor cited the time of night, the condition of Leslie, the circumstance of a recent attempted murder, and Montenegros goal of containing the area as explanations for the inaccurate short hair description. The prosecutor indicated the purpose of the broadcast was to find people who could be responsible for the crime, and then get into the finer details. The prosecutor said, "Thats how everybody works in life. You start from the general, you get specific."
Appellant argues that the prosecutor could not rationally draw this inference because Montenegro never testified that he deliberately broadcast a more general description than that given by Leslie. Had Montenegro testified that he deliberately broadcast a more general description, the prosecution would not have needed to infer it. Aside from citing the absence of Montenegros testimony that the description was deliberate, appellant has not presented evidence that the prosecutor used deceptive or reprehensible methods to persuade. (People v. Haskett, supra, 30 Cal.3d at p. 866.)
Aside from Montenegros recollection of Leslies description and his broadcast, the jury could have considered the testimony of Leslie and Mayberry that Leslie recalled the assailant as having a shaved or bald head and identified appellant in a photographic line-up. The jury also might have considered Leslies identification of appellant as her assailant in court. Moreover, the jury could have reasonably concluded that a description of the assailant as having short hair is similar enough to a shaved head as to render the discrepancy minor. Furthermore, appellant did not show that the jury applied the prosecutors comment "in an improper or erroneous manner." (People v. Brown, supra, 31 Cal.4th at p. 554.)
Accordingly, appellant has not proved that the prosecutors misstatement amounted to misconduct.
3. Prosecutors Statement Concerning Future Surgery for Victim
The second instance of alleged prosecutorial misconduct was when the prosecutor told the jury that the victim, Leslie, had future surgeries scheduled. In closing argument, the prosecutor described Leslies injuries: the fact that she raised her hand in a defensive move and a bullet struck her finger, that she was shot twice in the abdomen, and that she had to undergo two surgeries. The prosecutor then added, "More are scheduled." The prosecutor continued to describe Leslies five-day hospital stay and her inability to feed and bathe herself. There is no evidence that supports the statement that Leslie needed further surgery. Appellant argues that this comment could have elicited greater sympathy for Leslie to his detriment.
The record did not support the prosecutors comment. Respondent concedes that this comment was a misstatement, but emphasizes the brevity of the remark and asserts that the prosecutor did not intend the remark to inflame the jurors. Appellant correctly counters that even unintentional misstatement can rise to the level of reversible error. (People v. Bolton (1979) 23 Cal.3d 208, 214; see also People v. Hill (1998) 17 Cal.4th 800, 822-823.) Nevertheless, it remains crucial for a defendant to show the potential injury to the defendant. (People v. Sanders (1995) 11 Cal.4th 475, 526.) A reasonable juror might infer from this comment that Leslie had persistent injury that required additional surgery. Moreover, this statement is in the middle of a list of other injuries to the victim that the record supports. Appellant has not demonstrated that jurors would be any more inflamed at the mention of future surgeries than by the past surgeries, recovery, number of gunshot wounds, and injury and disability to the finger. Furthermore, appellant has not shown that the prosecutor making this statement rises to the level of a deceptive or reprehensible method. (People v. Haskett, supra, 30 Cal.3d at p. 866.) Accordingly, the prosecutors statement does not amount to misconduct.
Finally, appellants claim that cumulative errors deprived him of a fair trial is without merit as there were no harmful errors.
DISPOSITION
The judgment is affirmed.
We concur:
JOHNSON, Acting P.J.
ZELON, J.