Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 08WF2400, W. Michael Hayes, Judge.
Original proceedings; petition for a writ of habeas corpus, after judgment of the Superior Court of Orange County.
Raphael M. Goldman, under appointment by the Court of Appeal, for Defendant, Appellant and Petitioner.
Edmund G. Brown, Jr. and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant Thomas Manuel Prieto challenges his robbery conviction by direct appeal and consolidated petition for writ of habeas corpus. He contends on appeal the prosecutor committed prejudicial misconduct during argument to the jury and counsel was ineffective in failing to object to the misconduct and in failing to request an instruction on prior statements of a witness. He raises the same ineffective assistance claims in his petition. We affirm the judgment and deny the petition.
I
FACTS
The information charged defendant with one count each of robbery (Pen. Code, § 211) and receiving stolen property (Pen. Code, § 496, subd. (a)). It further alleged defendant had served a prior term in state prison (Pen. Code, § 667.5, subd. (b)). A mistrial was declared in the first trial when the jury was unable to reach a verdict. The court granted the prosecution’s motion to dismiss the receiving stolen property charge prior to the second trial.
Matthew Stevenson was walking on Acacia Boulevard in Stanton, on the night October 24, 2008, looking for his coworkers who were having a housewarming party. He was carrying a six-pack of Corona beer and a bag containing a bottle of champagne. He stood on the corner of the street, looking for the apartment, and used his cell phone to call his friends to come outside so he could see where their apartment was located.
There was a large group of people across the street from Stevenson. Two men from that group crossed the street and walked up to him. He asked, “What’s up?” and one of the two asked him the same question. One stood behind Stevenson and the other stood in front of him. They were close to him, within a foot and a half and made him feel uncomfortable. Stevenson identified defendant as the person who stood behind him.
Stevenson was told, “Give us your beer.” He asked the two men if they were serious and they said they were: “Yeah. Give us your f... beer.” Stevenson felt threatened and let them take the beer.
The thieves then demanded his wallet. Stevenson hesitated a second and took out his wallet. He attempted to remove the bills, intending to give the men the cash and keep his wallet, but “they just snatched [the wallet] and ran away.” The wallet contained over $100 in cash, two debit cards, a credit card, a Disneyland annual pass, an insurance card, business cards, and identification.
The men ran back to the group whence they came. Stevenson called 911 before the men even got across the street. The group dispersed before the police arrived.
Seven days later, Garden Grove Police Officer Joshua Olivo contacted defendant in the parking lot of a liquor store approximately 200 to 300 yards from the intersection where Stevenson had been robbed. The officer searched defendant and found an Orange County Credit Union MasterCard in defendant’s wallet. The name on the card was Matthew K. Stevenson.
Olivo said defendant’s hair was like his, shaved. He estimated defendant was five feet nine or ten inches tall, weighed 170 pounds, and had a moustache.
Investigator Joshua Brass of the Orange County Sheriff’s Department showed Stevenson a photo lineup on November 4, 2008. Using a computer program that generates a list of people possibly matching the description of the suspect input into the program, he created a lineup with defendant’s photograph and the photographs of five other individuals. Photographs of individuals who look similar to the suspect are used to make the procedure fair.
Before showing the lineup to Stevenson, Brass read him an admonishment which included a statement that the suspect may or may not be in the lineup. Stevenson identified defendant’s photograph as one of the people who robbed him. Stevenson said the photograph depicted the taller of the two suspects. Stevenson told Brass he was 75 percent sure of his identification.
Stevenson identified defendant at trial. On direct examination Stevenson said he “believe[s]” he told the investigator he was 80 percent sure of his identification, but on cross-examination he admitted he had said he was 75 percent sure. Stevenson testified he was “very confident” of his identification of defendant.
The court permitted Stevenson to be impeached with his felony conviction for stealing an automobile and four misdemeanor convictions involving moral turpitude: two convictions for burglary, one for fraudulent use of a credit card, and one for fleeing the scene of an accident, commonly referred to as hit and run.
The Defense
The defense was mistaken identity. When Stevenson called 911 on the night of the robbery, he told the dispatcher he had been robbed by two male Hispanics with shaved heads. He described the shorter of the two suspects as having a lip ring. When a deputy sheriff responded, Stevenson said the taller of the two men was six feet tall and the shorter one was about five feet 10 inches tall.
Stevenson said the photographs in the lineup looked similar, but it was clear they all were of different people. He admitted on cross-examination this was his third time testifying in this matter. He testified previously in December 2008 and April 2009. In April 2009, he testified it was difficult to make an identification at the lineup because “everybody looked so similar.” He admitted it took him 10 minutes to make an identification. Stevenson agreed the first time he said defendant was the person who took his beer was when he testified in December 2008. During that earlier testimony, Stevenson had said the other person is the one who took his wallet. In April 2009, Stevenson testified he did not know which suspect took his wallet.
Dr. Mitchell Eisen was called as a witness by the defense. He has a Ph.D. in psychology from University of Miami and has a specialty in eyewitness memory. He testified to the effects of certain factors on memory, including the amount of time one observes an event, and about the difficulty in making an accurate cross-racial identification.
Eisen testified to the effect a witness assuming the culprit is in the lineup has on an identification, and that a witness’s knowledge that someone had been arrested with his stolen property could undermine the admonition given to the witness that the suspect may not be in the lineup. An officer’s knowledge that a suspect is in a lineup could impact the witness’s identification as well. Conduct of the officer giving the lineup can influence choice. The time a witness takes to make an identification in a lineup should be considered in determining the accuracy of the identification. Eisen said the process of recognition happens quickly. If it takes longer than 10 to 12 seconds, or 36 seconds, “something else is going on beyond recognition memory.” Ten minutes is an inordinately long time in which to make an identification. When a witness mistakenly identifies a suspect the witness will continue to mistakenly identify the same suspect, a process known as reconstruction.
The Verdict and Sentence
The jury found defendant guilty of robbery. He subsequently admitted he had previously served a term in state prison. The court sentenced defendant to three years in state prison and struck the enhancement for sentencing purposes.
II
DISCUSSION
Defendant contends the prosecutor engaged in pervasive misconduct during her arguments to the jury. Noting that defense counsel did not object to a majority of the complained of comments, he argues the issue is preserved for appeal because instructions would not have cured the effect of the misconduct and, if we find the failure to object forfeited the issue on appeal, that defense counsel was ineffective for failing to object. He also claims counsel was ineffective for failing to request an instruction pursuant to CALCRIM No. 318 [inconsistent statement considered as truth of fact].
Prosecutorial Misconduct
“The standards governing review of misconduct claims are settled. ‘A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such “‘unfairness as to make the resulting conviction a denial of due process.’” [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial. [Citation.] In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review. [Citation.]’ [Citation.]” (People v. Parson (2008) 44 Cal.4th 332, 359.) Defendant claims the prosecutor’s argument to the jury was rife with misconduct. He says the prosecutor argued facts not in the record, mischaracterized evidence, impugned defense counsel, incited the jurors’ passion, and commented on punishment.
1. Arguing Facts not in Evidence and Mischaracterizing the Evidence
“Although prosecutors have wide latitude to draw inferences from the evidence presented at trial, mischaracterizing the evidence is misconduct. [Citations.] A prosecutor’s ‘vigorous’ presentation of the facts favorable to his or her side ‘does not excuse either deliberate or mistaken misstatement of fact.’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 823.)
a. Stevenson’s Prior Identifications
The prosecutor argued “Stevenson has repeatedly come to court, ” his identification of defendant “has never wavered, ” and he has “never given a description that was inconsistent with [defendant].” The prosecutor ended her argument with: “[Stevenson] has come repeatedly to court and said it was that guy, that is the guy I’ve identified every single time, that is the guy I’ve described, that is him, he robbed me, brazenly, without a mask, in the street, and that’s the guy, and he’s never wavered, despite - no matter how miserable it was to come to court, no matter how he’s been attacked, and the fact there’s no benefit to him, he has come again and again and consistently testified and told you his story.”
Defendant contends this argument informed the jury of Stevenson’s “extrajudicial statements” which would themselves have been inadmissible hearsay (Evid. Code, § 1200) and would not meet the requirement for admissibility as a prior consistent statement. (See Evid. Code, § 791.) Prior identifications, however, are governed by Evidence Code section 1238. But more importantly, there was evidence (introduced by the defense) that Stevenson identified defendant at the preliminary examination, and, at least inferentially, again identified defendant at the first trial. Arguing that Stevenson previously identified defendant was not improper and did not misstate the evidence. Indeed, prior to the complained of statements by the prosecutor, defense counsel argued that every time Stevenson comes to court he sees defendant and his “memory” gets affirmed, an allusion to Dr. Eisen’s testimony that a witness who makes an erroneous identification will stick to the identification, a process known as reconstruction. Consequently, the prosecutor’s comments were not improper.
“Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying and:
Neither did the prosecutor engage in misconduct when she argued Stevenson’s prior descriptions “exactly match” defendant. Defense counsel objected to the characterization and the court cautioned the jury: “Ladies and gentlemen, you have your notes. Remember, this is not evidence. This is arguments [sic]. Compare your notes and determine what the facts are.”
Stevenson gave a vague description of the robbery suspects to the 911 dispatcher, stating he had been robbed by two Hispanic males with shaved heads. He told the responding officer the taller of the two suspects was six foot tall and the shorter one was about five feet nine or ten inches tall. At trial he identified defendant as the taller of the two. According to Olivo’s estimate, defendant is five feet nine or ten inches tall. The fact that Stevenson’s estimate of one of the suspect’s height was off by as little as two inches does not mean the prosecutor overreached in stating the description was an exact match, although she was more accurate when she stated that Stevenson never gave a description that was “inconsistent with [defendant]” being one of the robbers.
Defendant also finds fault with the prosecutor’s assertion that the reason Stevenson said he was 75 percent sure of his photographic lineup identification was because he was concerned the suspect might not be in the lineup. There was no objection to the statement. Defendant now argues the statement was improper because while Stevenson had testified he took time to make the photographic identification because he did not want to make the wrong decision, he also testified it was difficult to make a decision because the people in the photographs looked similar.
What the prosecutor said was: “But what we do know is he made that identification, and he told you, yeah, I’m competent with it now. At the time I said 75 percent because... I was concerned the guy wouldn’t even be in the lineup. So my only hesitation is this guy wasn’t in the lineup.”
“‘“‘[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.]’”’” (People v. Stanley (2006) 39 Cal.4th 913, 951.) The prosecutor did not act improperly in urging Stevenson had said he was 75 percent sure of the photo lineup identification because he did not want to identify the wrong person. It was fair comment on evidence in the case.
b. Defendant Frequenting the Area of the Robbery
In arguing this was not a case of mistaken identity and it was no mere coincidence defendant was found with Stevenson’s credit card and identified by Stevenson as one of the robbers, the prosecutor stated defendant “frequents the exact neighborhood where the crime occurred. It is not as if [defendant] was found - that he’s a guy from Monterey. He’s not from Arizona. He’s a guy who is hanging out near - two, three football fields away from where this crime occurred. So it isn’t as if we’ve got a guy here who can say, hey, I’ve never even been to that area of Garden Grove.” Defendant argues these statements constituted misconduct because there was no evidence defendant “frequents” the area and there was no evidence he is not from Monterey or Arizona.
Defendant did not object to this statement. We reject defendant’s contention that objection would have been futile and that no curative instruction would have cured the harm. The complained of statement occurred early in the prosecutor’s opening argument. Immediately prior to the prosecutor’s statement about defendant frequenting the area of the robbery, the court admonished the jury in response to an objection by defense counsel. An objection would not have been futile.
Although we find the issue forfeited on appeal, we also do not find misconduct. While frequents means habitually, or often (Webster’s 3d New Internat. Dict. (1993) p. 909), and the evidence demonstrates defendant was in the area of the robbery a week after the robbery, we do not find misconduct in the imprecise use of the word. Fairly understood, the argument was that it was not a mere coincidence that defendant was (1) identified as the robber, (2) found in possession of part of the loot stolen from Stevenson, and (3) when he was found in possession of the property, he was but 200 to 300 yards from the location of the robbery.
Trial counsel’s declaration in support of the petition for a writ of habeas corpus states that she thought the use of the word frequent was but an exaggeration.
There was no evidence as to where defendant lives, but we agree with the Attorney General that this fleeting reference to residence did not infect the trial with fundamental unfairness or result in a miscarriage of justice.
2. Impugning Defense Counsel
Defendant claims the prosecutor committed misconduct in her opening argument when she said defense counsel “can dream up” a number of reasons defendant could have innocently possessed Stevenson’s credit card. According to defendant, that statement implied defense counsel did not believe her client’s defense. (See People v. Thompson (1988) 45 Cal.3d 86, 112-113 [improper for prosecutor to argue defense attorney does not believe in her client’s defense].) We disagree. We do not find in the prosecutor’s statement an implication that defense counsel did not believe in her client’s defense, or that she lacked integrity. The argument here is not analogous to accusing defense counsel of conjuring up witnesses, which implies defense counsel fabricated evidence (People v. Woods (2006) 146 Cal.App.4th 106, 116-117), or that defense counsel suborned perjury. (People v. Herring (1993) 20 Cal.App.4th 1066, 1075-1076.) The defense presented no evidence about how defendant came into possession of the card stolen in the robbery; it was fair to comment on that.
Indeed, after the prosecutor’s opening argument, defense counsel told the jury defendant would never have been brought to trial in this matter if he had not found the credit card and picked it up. The court properly sustained the prosecutor’s objection. There was no evidence defendant “picked [the credit card] up.”
Likewise, the prosecutor’s argument that Stevenson repeatedly came to court knowing that defense counsel would “try and pull him apart, ” but he never wavered in his identification, was not improper. It was merely the prosecutor’s way of stating that Stevenson’s testimony survived cross-examination, what “Professor Wigmore has called... the ‘greatest legal engine ever invented for the discovery of truth.’ [Citation.]” (People v. Chatman (2006) 38 Cal.4th 344, 384.) The prosecutor did not accuse defense counsel of fabricating evidence or imply that defense counsel was free to deceive the jury. (See People v. Bemore (2000) 22 Cal.4th 809, 846.)
Neither do we find anything improper in the prosecutor arguing the defense “wants to make real clear that you think of [Stevenson] as a felon.... She wants to inappropriately imply he has a problem with drugs and alcohol. She wants to throw dirt at him, and that’s what she is using as her argument, when she herself acknowledges this kid was robbed. [¶] Think about that. Thinks about how she - her case is so weak that their method is to go ahead and chuck all these accusations at... Stevenson.” This was a fair response to the defense argument that Stevenson is a 22 year old with a lengthy criminal history.
Without any evidence of drug use, defense counsel asked Stevenson on cross-examination if he stopped drinking and doing drugs. The court sustained an objection to the question. Defense counsel then asked Stevenson if he had done drugs the night of the robbery. Stevenson said no.
3. Appealing to the Jurors’ Passion
“‘It is, of course, improper to make arguments to the jury that give it the impression that “emotion may reign over reason, ” and to present “irrelevant information or inflammatory rhetoric that diverts the jury’s attention from its proper role, or invites an irrational, purely subjective response.” [Citation.]’ [Citations.]” (People v. Redd (2010) 48 Cal.4th 691, 742-743.) Along the same lines, “a prosecutor may not invite the jury to view the case through the victim’s eyes, because to do so appeals to the jury’s sympathy for the victim. [Citations.]” (People v. Leonard (2007) 40 Cal.4th 1370, 1406.) In her opening argument, the prosecutor said, “The facts of this case are disturbing, they’re upsetting, and they make you think twice about being alone on the street at night. So let’s face it. Matt Stevenson is a young guy. He can protect himself hypothetically, and this happened to him. He’s not exactly a real vulnerable member of the community, and yet look at what happened to [him]. [¶] So when I think about this case, when I think about [defendant], I’m angry because I think this is what this guy is doing to Orange County. He’s making people think twice about being on the streets because you might get robbed for no reason.”
There was no objection to these statements and the issue is forfeited on appeal. But even were we to find the statements to have been an appeal to the sympathies or passion of the jury, the statements “were not egregious and were relatively brief compared to the rest of [her] arguments” (People v. Martinez (2010) 47 Cal.4th 911, 957), and did not result in a denial of due process. Moreover, it is not reasonably probable that a result more favorable to the defendant would have been reached without these brief statements. (People v. Wallace (2008) 44 Cal.4th 1032, 1070-1071.)
As Stevenson testified there had been two robbers, the prosecutor addressed the issue of aiding and abetting. In attempting to explain why both would be equally guilty and the jury need not concern itself with who took what, she misstated the law: “And why do we have this sort of law? Well, because the law finds it particularly - unsettling and detestable when people join together to commit a crime. It is bad enough when you’re doing it yourself, but it’s even more menacing to society when you join with another [person] to commit crimes together.” She apparently confused conspiracy (see People v. Morante (1999) 20 Cal.4th 403, 416-417, fn. 5 [conspiracy punished more severely than target offense because conspiracy increases likelihood the crime will be successfully committed]) with aiding and abetting. It is generally misconduct for a prosecutor to misstate the law during argument (People v. Marshall (1996) 13 Cal.4th 799, 831), but in the present case, the misstatement was not urged upon the jury as a basis for any factual determination, or as a basis for a guilty verdict. Neither do we view the prosecutor’s statement as an attempt to convince the jury the law finds this crime particularly abhorrent. Immediately after making the misstatement the prosecutor brought home her point: in an aiding and abetting situation the participants are liable for the acts of each other. The misstatement did not violate due process or constitute a deceptive or reprehensible tactic used to persuade the jury.
4. Reference to Penalty
In discussing Stevenson’s identification of defendant, the prosecutor argued without objection that Stevenson knows about the criminal justice system, knows what conviction would mean, does not want to see an innocent person convicted, and wants “to put the right guy away.” She painted Stevenson as “a guy who is coming from the perspective of I’ve been in trouble before, and I know what happens.... So he’s a guy who is going to want to be careful because he knows what’s on the other side.”
“It is settled that in the trial of a criminal case the trier of fact is not to be concerned with the question of penalty, punishment or disposition in arriving at a verdict as to guilt or innocence.” (People v. Allen (1973) 29 Cal.App.3d 932, 936, fn. omitted; see also CALCRIM No. 3550.) “‘To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.’ [Citation.]” (People v. Gamache (2010) 48 Cal.4th 347, 371.) Here, the prosecutor’s reference to jail was not so much a reference to a penalty defendant would receive if convicted, or a call to the jury to put defendant in jail, as it was a reason why Stevenson was sure of his identification of defendant. There is no reason to believe the jury understood it any differently. The argument was proper.
5. Cumulative Error and Failure to Object
“We have rejected most of defendant’s claims of prosecutorial misconduct and found any arguable misfeasance nonprejudicial. Accordingly, we reject his argument that a pattern of pervasive misconduct excused his failure to object. [Citation.] For the same reason, we reject his further claim that the cumulative impact of the alleged misconduct resulted in prejudice and deprived him of a fair trial.” (People v. Collins (2010) 49 Cal.4th 175, 208.)
Ineffective Assistance of Counsel
A defendant’s right to effective assistance of counsel is guaranteed by the Sixth Amendment to the United States Constitution and by article I, section 15 of the California Constitution. There is no “substantive difference between” the federal and state constitutional right to effective assistance of counsel. (People v. Doolin (2009) 45 Cal.4th 390, 421.) “To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. (Strickland [v. Washington (1984) 466 U.S. 668, ] 687–688, 693; [People v.] Ledesma [(1987) 43 Cal.3d 171, ] 216.)” (People v. Benavides (2005) 35 Cal.4th 69, 92-93.) “Prejudice exists where there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. [Citation.]” (Id. at p. 93.)
Because we find defendant failed to demonstrate misconduct and has suffered no prejudice even assuming error, his claim of ineffective assistance of counsel for failing to object to the purported misconduct must also fail. “If a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel’s performance was deficient. [Citation.]” (People v. Kipp (1998) 18 Cal.4th 349, 366-367.)
We note trial counsel’s declaration, attached to the petition for a writ of habeas corpus, sets forth her reasonable tactical decisions for not objecting. We accord great deference to such decisions and do not second-guess them. (People v. Stanley (2006) 39 Cal.4th 913, 954.)
We now turn to defendant’s claim that counsel was ineffective in failing to request instruction pursuant to CALCRIM No. 318. That instruction provides: “You have heard evidence of [a] statement[s] that a witness made before trial. If you decide that the witness made (that/those) statement[s], you may use (that/those) statements in two ways: [¶] 1. To evaluate whether the witness’s testimony in court is believable; [¶] AND [¶] 2. As evidence that the information in (that/those) statement[s] is true.” Counsel states in her declaration that she was surprised to learn she did not request the instruction.
Even though counsel did not make a constitutionally reasonable tactical decision not to request CALCRIM No. 318, defendant has not demonstrated prejudice from that failure. The court instructed the jury regarding conflicting evidence (CALCRIM No. 302) and eyewitness identification (CALCRIM No. 315). The latter set forth a number of factors for the jury to consider in determining whether to accept the identification, including whether the witness provided a description of the suspect and how that description compares to the defendant. These two instructions permitted defense counsel to argue why a reasonable doubt existed as to Stevenson’s identification of defendant.
III
DISPOSITION
The judgment is affirmed and the petition for a writ of habeas corpus is denied.
WE CONCUR: BEDSWORTH, ACTING P. J., ARONSON, J.
“(a) The statement is an identification of a party or another as a person who participated in a crime or other occurrence;
“(b) The statement was made at a time when the crime or other occurrence was fresh in the witness’ memory; and
“(c) The evidence of the statement is offered after the witness testifies that he made the identification and that it was a true reflection of his opinion at that time.” (Evid. Code, § 1238.)