Opinion
F073038
06-27-2018
THE PEOPLE, Plaintiff and Respondent, v. VERNON ROYAL, JR., Defendant and Appellant.
Jin H. Kim, 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, Matthew A. Kearney and Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING
[No Change in Judgment]
THE COURT:
It is ordered that the opinion filed herein on June 27, 2018, be modified in the following particulars:
1. The last sentence of the first partial paragraph at the top of page 3 is deleted.
2. On page 3, the first full paragraph is deleted and the following paragraph inserted in its place:
After purchasing beer, Sandy M. left the store and returned to her car. Sandy M. walked to the passenger side of her car, placing the beer on the floor and her purse on the seat. Sandy M. shut the door and started to walk to the driver's side to get into her car. With her hand on the door handle, Sandy M. spotted defendant out of the corner of her eye running toward the passenger side of her car. As Sandy M. ran back to the passenger side, defendant reached into her car and began "grabbing and
digging in [her] car ...." Sandy M. explained that during the struggle with defendant over her belongings, she did not see defendant's face. Sandy M. was sure that the person she saw when she entered the store was dressed in the same clothing as the person who took her property. Sandy M. testified defendant left the scene on the same bicycle she had seen him riding when she initially parked her car, an older mountain bicycle.
3. On page 3, at the end of the third full paragraph, add the following paragraph:
The jury was shown video sequences of defendant entering and exiting the store, as well as of Sandy M. entering the store. Defendant exited the store a minute or so prior to Sandy M. entering the store. The video sequences show Sandy M. leaving the store after making her purchase and do not show defendant in the store after Sandy M. entered it. Sandy M. testified that when she entered the store, she looked back toward the door because she felt someone was behind her and she also remembered seeing a video showing defendant walking past her when she was at the cash register.
4. The paragraph commencing at the bottom of page 12 with "We also agree" and ending at the top of page 13 with "standard of review" is modified to read as follows:
We also agree with the People's argument that the evidence of defendant's guilt on counts 5 and 7 was very strong. Sandy M.'s testimony that she saw defendant near the entrance of the store as she entered it was corroborated by security video showing defendant entering the store and then exiting about a minute prior to Sandy M. entering the store. These video images place defendant at the store just before Sandy M. entered it, corroborating her testimony that she saw defendant near the entrance of the store just as she entered it. Sandy M. further testified her assailant was wearing the same clothing as defendant was wearing when she saw him as she entered the store, and he fled the scene on the same mountain bicycle she had seen him riding when she first parked her car to enter the store. Security video depicted defendant stealing items from FoodMaxx, as alleged in count 7, prior to leaving the store without paying for them and fighting with store security guards during his attempted escape. Assuming arguendo the prosecutor made a misstatement of law concerning the presumption of innocence, any error was harmless under either the Watson or Chapman standard of review.
There is no change in the judgment. Appellant's petition for rehearing filed July 6, 2018, is denied.
PEÑA, J. WE CONCUR: POOCHIGIAN, Acting P.J. SMITH, J. 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. F15900883)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt, Judge. Jin H. Kim, 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, Matthew A. Kearney and Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Vernon Royal, Jr., was found guilty at the conclusion of a jury trial of two counts of second degree robbery (Pen. Code, § 211; counts 5 & 7). In a bifurcated proceeding, defendant admitted three prior prison term enhancements (§ 667.5, subd. (b)). On January 6, 2016, the trial court sentenced defendant to a term of five years on count 5, a consecutive term of one year on count 7, and a consecutive term of one year for a prior prison term enhancement. The court struck the other two enhancements. Defendant's total prison term is seven years. The court awarded total custody credits of 392 days.
Further statutory references are to the Penal Code unless otherwise indicated.
Prior to trial, the trial court granted the prosecutor's motion to dismiss count 6, a misdemeanor allegation of petty theft (§ 484, subd. (a)). The jury failed to reach a verdict on counts 1 through 4, allegations of kidnapping (§ 207, subd. (a)) and robbery involving two other victims. The trial court granted the prosecutor's motion to dismiss these counts.
On appeal, defendant contends the prosecutor committed misconduct by misstating the law concerning the presumption of defendant's innocence, rendering his trial fundamentally unfair because the prosecutor resorted to reprehensible methods to ensure defendant's conviction. The parties argue over whether defense counsel made an adequate objection to preserve this issue for appellate review. We reach the merits and find no prosecutorial misconduct.
FACTS
Second Degree Robbery of Sandy M., Count 5
Sandy M. arrived at Foods Co. to buy some groceries on her way home from work during the early morning hours of January 30, 2015. While parking her car, Sandy M. noticed defendant riding a bicycle around the parking lot. He was wearing a black ski cap with a red and white stripe beneath a hooded black and gray jacket with white stripes down the sleeves, gray jeans, and red shoes. Sandy M. parked her car and walked towards the store. Defendant was standing alone outside the store eating cookies and was about 10 feet away from Sandy M. as she passed him. Defendant said something to Sandy M., but she did not pay attention and did not hear what he said. Defendant followed Sandy M. into the store.
California Rules of Court, rule 8.90(b)(4) directs us to protect the personal privacy interests of victims and witnesses in criminal proceedings. --------
After purchasing beer, Sandy M. left the store and returned to her car as defendant followed her. Sandy M. walked to the passenger side of her car, placing the beer on the floor and her purse on the seat. Sandy M. shut the door and started to walk to the driver's side to get into her car. With her hand on the door handle, Sandy M. spotted defendant out of the corner of her eye running toward the passenger side of her car. As Sandy M. ran back to the passenger side, defendant reached into her car and began "grabbing and digging in [her] car ...."
Some of the items defendant grabbed included Sandy M.'s phone, which was plugged into her car charger. By the time Sandy M. realized what was happening, defendant had already pocketed her phone. Defendant grabbed at Sandy M.'s purse. Sandy M. tried to pull the purse back from defendant, like they were playing "tug-a-war." As they struggled over the purse, defendant reached inside the purse and grabbed Sandy M.'s wallet. After grabbing her wallet, defendant pushed Sandy M. in the chest, causing her to fall back and land on her knee. Defendant fled on a bicycle.
Sandy M. ran back into Foods Co. screaming and called 911. A recording and transcript of the 911 call was made available to the jury. After police arrived, a police officer showed Sandy M. a security video of defendant inside the store. Sandy M. positively identified defendant as the person who attacked her at her car. Second Degree Robbery of Anthony A., Count 7
On the evening of January 31, 2015, defendant entered a FoodMaxx store and selected a handbasket. Defendant was wearing a black ski cap with a red and white stripe beneath a hooded black and gray jacket with white stripes down the sleeves, gray jeans, and red shoes. He was also carrying a backpack. Anthony A., a FoodMaxx security guard on duty, observed defendant select several items, put them into a basket, and "conceal them by putting one of his arms into the basket and sliding items into his coat." Defendant left the store without paying for the items.
Anthony A. followed defendant out of the store, identified himself as loss prevention, and told defendant to stop. Instead of stopping, defendant hopped on a bicycle and began to pedal. Two other security guards, Jose R. and Nick V., also attempted to stop defendant. When Anthony A. and Jose R. grabbed defendant's backpack, defendant jumped off the bicycle, picked it up, and threw it at Anthony A. The bike hit Anthony A.'s left leg. During the encounter, defendant turned around and punched Anthony A. in the face.
Defendant began to flee on foot, running into the parking lot. Jose R., Nick V., and Anthony A. ran after defendant. Defendant threw the items he had concealed in his jacket at different vehicles. Suddenly, defendant charged Nick V. "like a football player" going into a three-point stance and then lunging for the chest. Nick V. grabbed hold of defendant in a bear hug. Defendant started kicking, punching, and trying to bite.
Following a brief struggle, Anthony A. and Nick V. were able to detain defendant until police arrived. Police recovered the items stolen by defendant, including hash browns, tortillas, sausage, three or four eggs, and cheese. Defendant told police that he was "[j]ust hungry, man. That is the food I took from the store. I was just hungry." The jury viewed surveillance video showing defendant stealing items in the store and portions of his struggle with the security guards.
Prosecutor's Closing Argument
Prior to closing argument, the trial court told the jury "what counsel say in their final remarks to you is not evidence, okay. Each counsel will have an opportunity to outline what they interpret the evidence in this case to show." The court further advised the jury that "[i]f the attorneys discuss the law and it differs from the instructions that I give to you, you must rely on the instructions that I give to you, okay."
During closing argument, the prosecutor stated the following regarding the presumption of innocence:
"While we started out this process with the idea that the defendant as he sat prior to hearing any of the evidence with the presumption of innocence, that presumption is gone. The evidence is in, and the evidence shows beyond a reasonable doubt that the defendant committed all of the charged crimes against all of the charged victims beyond a reasonable doubt. And with jury selection—or with giving closing arguments to juries I like to give them three tools that they can take with them while they go through the deliberation process. The three tools are obviously going to be the facts, the witness testimony, the videos that we saw, the 911 call. Those are the facts and the evidence in this case and it's your job to use the facts and apply that to the law. The law being the second tool, the instructions that the judge will instruct you with in regards to the various elements of the charges in this case, and then finally your common sense."
Defense counsel lodged the following objection: "Your Honor, objection, that misstates the law and it's improper argument." The court overruled the objection. The prosecutor then summarized the evidence and explained how it proved each element of the offenses charged beyond a reasonable doubt. In conclusion, the prosecutor said to the jury: "Finally, reasonable doubt. The burden on the People is to prove each and every one of these charges beyond a reasonable doubt, so there will be an instruction regarding what reasonable doubt is." The prosecutor further explained:
"Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. As we've discussed in jury selection, the evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all of the evidence that was received throughout the entire trial. Unless the evidence proves the defendant's guilty beyond a reasonable doubt, he's entitled to an acquittal and you must find him not guilty." (Italics added.)
In its jury instructions, the trial court advised the jury once that:
"A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a
reasonable doubt. So whenever I tell you the People must prove something, I mean, they must prove it beyond a reasonable doubt unless I specifically instruct you otherwise.
"Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all of the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty."
DISCUSSION
Alleged Prosecutorial Misconduct
Introduction
Defendant contends the prosecutor misstated the People's burden of proof and, in so doing, violated defendant's fundamental right to a fair trial. The People contend defendant forfeited this point because, although his trial counsel objected to the prosecutor's statement concerning the burden of proof, counsel did not object that the alleged misstatement constituted prosecutorial misconduct. The People further argue the prosecutor's statement was not a misstatement of law. Although we disagree with the People that there was forfeiture of this issue, we agree the prosecutor did not misrepresent the People's burden of proof but made fair commentary on the state of the evidence adduced at trial.
Forfeiture
A claim of prosecutorial misconduct can be reviewed only if the defendant makes a timely objection at trial and requests the court to admonish the jury to disregard the impropriety. The issue is otherwise reviewable only if an admonition would not have cured the harm. (People v. Sapp (2003) 31 Cal.4th 240, 279; see People v. Cowan (2017) 8 Cal.App.5th 1152, 1161.) It is improper for the prosecutor to misstate the law generally, and particularly to absolve the prosecution from its obligation to overcome reasonable doubt on all elements of the charged offense. (People v. Centeno (2014) 60 Cal.4th 659, 666.)
Defense counsel objected to the beginning of the prosecutor's opening argument in which she argued the People had overcome the presumption of innocence due to the evidence presented at trial. Although defense counsel did not denote this error as prosecutorial misconduct, counsel lodged a timely objection that the argument misstated the law. As noted in Centeno, a misstatement of the law, especially when it is on the basis of misconstruing the People's burden of proof, is a form of prosecutorial misconduct.
The People further argue defense counsel failed to request an admonition to the jury that would have cured any error in the prosecutor's alleged misstatement of law. The trial court immediately overruled defense counsel's objection to the prosecutor's argument. It would have been futile for counsel to request an admonition to cure an alleged misstatement of law where the court had already found no error in the prosecutor's statement. Defense counsel's timely objection, therefore, preserved this issue for appellate review and it is not subject to forfeiture.
Analysis
Advocates are given significant leeway in discussing the legal and factual merits of a case in argument. As noted above, however, it is improper for the prosecutor to misstate the law generally, and particularly to absolve the prosecution from its obligation to overcome reasonable doubt on all elements of the charged offense. (People v. Centeno, supra, 60 Cal.4th at p. 666.) To establish prosecutorial misconduct, the prosecutor's conduct need not encompass bad faith. The term prosecutorial misconduct has been described as a misnomer to the extent it suggests a prosecutor must act with a culpable state of mind. A more apt description of such transgressions is prosecutorial error. (Id. at pp. 666-667.)
In People v. Booker (2011) 51 Cal.4th 141, 183-184, the prosecutor argued the defendant did not stay presumed innocent because at some point the jury comes to the conclusion he is guilty and the presumption is gone. If the jury concludes the defendant is not guilty, the presumption of innocence is always there. The presumption is not an automatic thing forever, "'[t]hat's why we have a trial. Once the evidence convinces you he is no longer innocent, that presumption vanishes.'" The California Supreme Court held the prosecutor's remarks did not lessen the People's burden of proof by implying the defendant was not entitled to be presumed innocent. (Id. at p. 185.)
Booker analyzed an earlier case, People v. Goldberg (1984) 161 Cal.App.3d 170, 189-190 (Goldberg), where the court of appeal faced a similar claim. (People v. Booker, supra, 51 Cal.4th at p. 185.) In Goldberg, the prosecutor argued the defendant was no longer presumed innocent after she was proven guilty by the evidence. (Goldberg, supra, at p. 189.) Both Goldberg and Booker found the statements of the prosecutors in those cases argued the jury should return a verdict in the People's favor based on the state of the evidence presented. (Booker, supra, at p. 185; Goldberg, supra, at p. 190.) The prosecutor has a wide-ranging right to discuss the case in closing argument, to fully state his or her views as to what the evidence shows, and to urge whatever conclusions he or she deems proper. Where the prosecutor's references to the presumption of innocence are made in connection to the general point that the evidence, just referred to at length, proved the defendant's guilt beyond a reasonable doubt, there is no error because the prosecutor can argue the evidence overcame the presumption of innocence. (People v. Panah (2005) 35 Cal.4th 395, 463 [prosecutor argued evidence presented at trial stripped away presumption of innocence] (Panah).)
Defendant argues his case is more like other authorities, such as People v. Dowdell (2014) 227 Cal.App.4th 1388 (Dowdell) and People v. Cowan, supra, 8 Cal.App.5th 1152. In Dowdell, the court instructed the jury a defendant is presumed innocent and the People have to prove guilt beyond a reasonable doubt. The prosecutor twice argued the presumption had ended. The prosecutor initially argued the evidence was overwhelming; the prosecutor's goal was to give the defendant a fair trial and he just got one; the jury had evidence; and the presumption of innocence was over. The prosecutor later argued it was fairly obvious the defendant committed all of the crimes he was accused of committing; "'The presumption of innocence is over'"; the defendant got a fair trial; and for the jury to be thorough, deliberate, and to come back with guilty verdicts on all of the counts. (Dowdell, supra, at p. 1407.)
Dowdell noted the prosecutor's statement was distinguishable from those made in Panah and Goldberg because the prosecutor misstated the law and because the presumption of innocence continues into the jury's deliberations and the prosecutor implied it was already over. The court in Dowdell noted that arguably the prosecutor's initial statement was similar to the prosecutors' statements in Panah and Goldberg because he focused on the strength of the evidence in the case. The prosecutor's second statement failed to do this and emphasized the presumption of innocence was over, even before the jury began its deliberations. Although the court in Dowdell found this was prosecutorial misconduct, it ultimately concluded the error had been forfeited by defense counsel's failure to lodge any objection. (Dowdell, supra, 227 Cal.App.4th at p. 1408.)
Defendant also relies on Cowan to support his assertion of error. In Cowan, the prosecutor's statement went even further than in Dowdell because the prosecutor argued to the jury the presumption of innocence ended with the reading of the charges against the defendant, even before the evidence was presented at trial. The court in Cowan found this was an improper attempt by the prosecutor to lighten the People's burden of proof. (People v. Cowan, supra, 8 Cal.App.5th at p. 1160.) Cowan noted defense counsel failed to object but implied a correcting admonition by the trial court would not have cured the prosecutorial misconduct. Cowan ultimately held the prosecutor's misstatement of law necessitated reversal. (Id. at pp. 1161-1164.)
Defendant further relies on a federal case, Mahorney v. Wallman (10th Cir. 1990) 917 F.2d 469 (Mahorney). In Mahorney, the prosecutor's closing argument stated that when they were seated as jurors, the defendant was presumed not to be guilty of the crime of first degree rape. The prosecutor went on to argue things had changed since then and, "under the law and under the evidence, that that presumption has been removed, that that presumption no longer exists, that that presumption has been removed by evidence and he is standing before you now guilty. That presumption is not there anymore." (Id. at p. 471.) The Mahorney court found the prosecutor's comments were impermissible because they undermined two fundamental aspects of the presumption of innocence: (1) the presumption remains with the accused throughout every stage of the trial, including the jury's deliberations, and (2) the presumption is extinguished only upon the jury's determination that guilt was established beyond a reasonable doubt. (Id. at p. 471, fn. 2.) Mahorney found the error was not harmless beyond a reasonable doubt. (Id. at p. 474.)
Defendant argues the prosecutor here misstated the law similarly to the prosecutors in Dowdell, Cowan, and Mahorney because the prosecutor discussed the presumption of innocence being gone in light of all the evidence presented at trial. The prosecutor, however, further explained to the jury it had three tools to use during its deliberation process: the evidence, including witness testimony, the videos, and the 911 call; the law, including the judge's instructions concerning the elements of the offense; and each juror's own common sense. The prosecutor's argument to the jury was not that the presumption was over before deliberations started. Rather, the prosecutor explained to the jury it still had to go through a complete deliberation process, and, in doing so, the facts would overcome the presumption of defendant's innocence.
The prosecutor did not argue the presumption ended with the reading of the charges as occurred in Cowan; she did not argue the presumption was completely over as happened in Dowdell; and she was not arguing the presumption had been totally removed prior to the jury's deliberations as the prosecutor argued in Mahorney. Read in context, the prosecutor's statement that the presumption of innocence was gone would occur only after the jury considered the facts and the law. The statement, like those made by the prosecutors in Booker, Panah, and Goldberg, was permissible commentary that the People had met their burden of proof and overcome the presumption of defendant's innocence. It was not a statement the presumption of innocence no longer applied.
The prosecutor asked the jury to engage in a full deliberation process. As she finished her opening statement, the prosecutor explained to the jury: "In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all of the evidence that was received throughout the entire trial. Unless the evidence proves the defendant's guilty beyond a reasonable doubt, he's entitled to an acquittal and you must find him not guilty." (Italics added.) The prosecutor further told the jury the "burden on the People is to prove each and every one of these charges beyond a reasonable doubt, so there will be an instruction regarding what reasonable doubt is." During other parts of her closing argument, the prosecutor also referred to the evidence supporting a finding defendant committed his offenses beyond a reasonable doubt. These closing remarks entirely distinguish this case from the prosecutor's arguments in Cowan and Mahorney. They are also distinguishable from Dowdell where the prosecutor reiterated an incorrect statement of law a second time in concluding remarks to the jury. Furthermore, the trial court's instructions on reasonable doubt and the People's burden of proof were given after the prosecutor's closing argument.
Reading the prosecutor's argument in its entirety and in context, we find she did not commit prosecutorial misconduct or misstate the law as analyzed in Dowdell, Cowan, and Mahorney. The prosecutor was arguing throughout her closing statement that the evidence presented at trial was strong enough to overcome any presumption of innocence, and she invited jurors to engage in a full deliberation process prior to concluding defendant's presumption of innocence was gone and in reaching guilty verdicts beyond a reasonable doubt. We conclude the prosecutor's comments fall well within the scope of permitted argument discussed in Booker, Panah, and Goldberg.
Harmless Error
Assuming the prosecutor's comment to the jury included a misstatement of the law, any error was harmless. Prosecutorial misconduct falling short of rendering the trial fundamentally unfair constitutes misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trier of fact. (Panah, supra, 35 Cal.4th at p. 462, citing People v. Ayala (2000) 23 Cal.4th 225, 283-284; see People v. Watson (1956) 46 Cal.2d 818, 836.) If the error is fundamental enough to implicate a violation of the Constitution, it must be harmless beyond a reasonable doubt under the standard of review set forth in Chapman v. California (1967) 386 U.S. 18, 24. (People v. Lenart (2004) 32 Cal.4th 1107, 1130.)
The alleged misstatement of law was brief and was superseded by the prosecutor's correct statement of law at the end of her closing statement to the jury, as well as her numerous statements to the jury regarding the People's burden of proof. Defense counsel argued the People had the burden of proof and the presumption of innocence required acquittal unless the People established guilt beyond a reasonable doubt. The trial court's instructions on the presumption of innocence and the People's burden of proof were read to the jury after the parties' closing arguments. The likelihood that the jury misconstrued the prosecutor's allegedly incorrect remark is very low given the numerous accurate statements of law by both parties and the trial court.
We also agree with the People's argument that the evidence of defendant's guilt on counts 5 and 7 was very strong. Sandy M.'s testimony was corroborated by a security video depicting defendant following her around the store prior to the robbery. Security video depicted defendant stealing items from FoodMaxx, as alleged in count 7, prior to leaving the store without paying for them and fighting with store security guards during his attempted escape. Assuming arguendo the prosecutor made a misstatement of law concerning the presumption of innocence, any error was harmless under either the Watson or Chapman standard of review.
DISPOSITION
The judgment is affirmed.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
SMITH, J.