Opinion
F054690.
2-26-2009
THE PEOPLE, Plaintiff and Respondent, v. ROBERT RUIZ, Defendant and Appellant.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Defendant was convicted of soliciting the rape and murder of his former wife, and separately soliciting the murder of his former wife and her divorce attorney. He contends the prosecutor committed prejudicial misconduct by eliciting from witnesses testimony that had been prohibited by the court in its in limine rulings. Additionally, he contends the court violated his right to counsel by failing to hold a hearing on his postconviction request for substitute counsel. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On July 19, 1999, defendants former wife, Tracy Ruiz, left him by climbing out a bedroom window with their three children while defendant slept on the couch in the living room. The next day, Tracy filed for divorce and for a restraining order against defendant. In 1999, after a hearing in the divorce case, defendant stormed out of the courtroom and an attorney in the hallway heard him say, "I dont care what the fuck you say about this, they are just going to be offd. The bitch is going to be offd ." Subsequently, Tracy and her attorney, Deloise Tritt, decided not to complete the dissolution proceedings immediately, but to wait in the hope that defendant would calm down. In 2002, defendant told a co-worker that, if he ever got the money, he would have his wife killed; in 2005, he told his girlfriend more than once that he wanted to get rid of his ex-wife and her attorney. In 2005, Tracy informed Tritt that she wanted to finalize the divorce so she could remarry. The divorce became final on June 21, 2006.
Prior to January 10, 2006, defendant went into a comic book store he frequented and asked the owner, Joe Bermudez, if he would rape, humiliate, and kill defendants wife. In subsequent conversations, defendant asked Bermudez to have two or three of his friends rape and kill defendants wife and kill his wifes divorce attorney. On January 10, 2006, defendant asked Bermudez if he had found anyone. Bermudez said no. Defendant then approached Curtis Richardson, a customer in the comic book store, and asked him if he would rape and kill defendants wife. Richardson said he would think about it. After defendant left the store, Bermudez and Richardson discussed defendants proposal and called the police.
The police decided to have an undercover officer pose as a hit man and have Bermudez introduce him to defendant. Officers kept the comic book store under surveillance. On learning that defendant was to receive money from a retirement or severance package from his employer in early February, the police became concerned defendant might attempt to hire someone else to kill Tracy and her attorney, and they arrested defendant.
While defendant was in jail, he asked Larry Nickerson, another inmate, to kill defendants wife and her divorce attorney. Nickerson first told defendant he would do it, then said he would find someone else to do it. After defendant saw an article about himself in the Fresno Bee, he wanted "Joe and Curtis" killed too. While defendant was in jail, he also asked Jimmy Perez, another inmate, to kill defendants wife and her attorney.
After jury trial, defendant was found guilty of soliciting Curtis Richardson to murder and rape Tracy Ruiz (counts 1 & 2 of the first amended information), soliciting Jimmy Perez and/or Larry Nickerson to murder Tracy Ruiz (count 3), and soliciting Jimmy Perez and/or Larry Nickerson to murder Deloise Tritt (count 4), all in violation of Penal Code section 653f, subdivision (b) or (c). He was acquitted of soliciting Larry Nickerson to murder Curtis Richardson (count 5) and Joe Bermudez (count 6).
Prior to sentencing, the court received a letter from defendant, complaining about appointed defense counsels failure to communicate with defendant, failure to present certain evidence at trial, and failure to provide discovery materials to defendant. In the letter, defendant made a "formal request" that the court "make inquiry of Mr. Foster as to his reasons" for his actions, and asked that it "address him back to the correct path & procedure." Defendants letter also claimed that the court had failed to enforce its in limine orders when the prosecutor violated them, and asked that the judge recuse himself.
On September 21, 2007, the date initially set for sentencing, the court expressly denied defendants request that the judge recuse himself. At the next sentencing hearing, on October 12, 2007, the court stated that he "did not conclude from what Mr. Ruiz had to say in his letter that there was any demonstration of a colorable claim of ineffective assistance." The court concluded, "The long and the short of it is, Im not delaying the case for purposes of any of Mr. Ruizs letter here."
Defendant filed a motion for new trial, which was based in part on his assertions of prosecutorial misconduct. The motion was heard and denied on January 14, 2008.
DISCUSSION
I. Marsden Hearing
Defendant contends that the trial court should have conducted a Marsden hearing in response to his letter to the court. The rule established by People v. Marsden (1970) 2 Cal.3d 118 (Marsden), is well settled. "`"When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorneys inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result." [Citation.]" (People v. Roldan (2005) 35 Cal.4th 646, 681 (Roldan), disapproved on another ground in People v. Doolin (2209) 45 Cal.4th 390, 421, fn. 22.) "`A defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense. [Citation.] Tactical disagreements between the defendant and his attorney do not by themselves constitute an "irreconcilable conflict." [Citation.]" (People v. Valdez (2004) 32 Cal.4th 73, 95 (Valdez).)
"The decision whether to grant a requested substitution is within the discretion of the trial court; appellate courts will not find an abuse of that discretion unless the failure to remove appointed counsel and appoint replacement counsel would `substantially impair the defendants right to effective assistance of counsel. [Citation.]" (Roldan, supra, 35 Cal.4th at p. 681.)
A Marsden hearing is not required unless the defendant in some manner requests a new attorney. "[A] trial courts duty to permit a defendant to state his reasons for dissatisfaction with his attorney arises when the defendant in some manner moves to discharge his current counsel." (People v. Lucky (1988) 45 Cal.3d 259, 281 (Lucky), fn. omitted.) "`Although no formal motion [for new counsel] is necessary, there must be "at least some clear indication by defendant that he wants a substitute attorney." [Citations.] `The mere fact that there appears to be a difference of opinion between a defendant and his attorney over trial tactics does not place a court under a duty to hold a Marsden hearing. [Citation.]" (Valdez, supra, 32 Cal.4th at p. 97.)
Defendant contends that his letter to the court constituted a request for substitution of counsel, which triggered his right to a Marsden hearing. The court, without conducting a hearing to further investigate the nature of defendants complaints about his appointed counsel, declined to appoint new counsel. Defendant contends the failure to conduct a hearing in response to his letter constituted a violation of his right to effective assistance of counsel.
In People v. Dickey (2005) 35 Cal.4th 884, the defendant contended that, after the guilt phase of his trial, he moved for the appointment of substitute counsel to represent him in the penalty phase, and the court failed to conduct a Marsden hearing and refused to rule on the motion until after the penalty phase. The court found, however, that the defendants motion, as framed by his trial counsel, was for appointment of separate counsel to prepare a motion for a new trial, based in part on allegations that trial counsels representation at the guilt phase was incompetent. (Dickey, supra, at p. 918.) When asked by the trial court, defense counsel said he thought the motion for appointment of counsel should be heard after the penalty phase. (Ibid.) The trial court later appointed separate counsel to prepare a motion for new trial. The motion, which was based on claims of ineffective assistance of counsel during the guilt phase and on the courts failure to conduct a Marsden hearing after the guilt phase, was denied. (Dickey, supra, at p. 920.) Regarding the Marsden claim, the trial court noted that its references to Marsden in discussing the request for appointment of counsel were a "`poor choice of words," because the request was not actually a Marsden motion. (Dickey, supra, at p. 920.) The appellate court concluded there was no Marsden error. A Marsden motion requires "`"`at least some clear indication by defendant that he wants a substitute attorney." [Citations.]" The defendant, however, "did not clearly indicate he wanted substitute counsel appointed for the penalty phase. To the extent he made his wishes known, he wanted to use counsels assertedly incompetent performance in the guilt phase as one of the bases of a motion for new trial, and he wanted to have separate counsel appointed to represent him in the preparation of such a motion." (Dickey, supra, at pp. 920-921.)
In Valdez, the defendant made two Marsden motions. He complained about counsel not communicating with him and not having potential witnesses interviewed. (Valdez, supra, 32 Cal.4th at pp. 91-93.) In response, the trial court questioned the defendant about these matters, then asked his attorney to respond. After considering the information received, the trial court denied both motions. (Id. at pp. 92, 93.) During the penalty phase of trial, after the defendant disagreed with his attorney about whether he should testify, the defendant sent a letter to the trial court asking for a hearing out of the presence of the prosecutor. (Id. at p. 93.) During that hearing, the trial court repeatedly asked the defendant what his motion was, and what he wanted the court to do. (Id. at pp. 94-95.) The defendant complained that he had not had a fair trial, but did not specify what relief he was asking of the court. (Id. at p. 95.)
The appellate court concluded the two Marsden hearings were sufficient and, as to the defendants third motion, the trial court was under no duty to hold a Marsden hearing. (Valdez, supra, 32 Cal.4th at p. 95.) Despite the trial courts questioning about why the defendant wanted a hearing, the defendant did not ask for a Marsden hearing by name or ask that his attorney be replaced; he "merely complained about his defense and argued that additional witnesses should be questioned." (Valdez, supra, at p. 97.) The court concluded: "Since we conclude that defendants comments were insufficient to indicate that he was requesting a Marsden hearing, `the trial court was under no obligation to conduct an inquiry into any dissatisfaction defendant might have with his appointed counsel so as to necessitate substitution of counsel. [Citation.]" (Ibid.)
In Lucky, the defendant argued that, when he expressed a desire to retain private counsel because of a "`conflict" with appointed counsel, the trial court should have conducted a Marsden hearing to allow him to state fully his reasons for dissatisfaction with appointed counsel. (Lucky, supra, 45 Cal.3d at p. 280.) Appointed counsel stated they had a difference of opinion about trial tactics, and the court continued the matter to permit the defendant to consult with a private attorney. Appointed counsel subsequently informed the court the defendant would not be retaining private counsel. The trial court asked the defendant if he had "`any problems with [appointed counsel] handling this, other than you think the case should be handled one way or the other," and the defendant replied, "`Thats about all, Your Honor." (Ibid.) Through the remainder of the proceedings, the defendant did not express any further dissatisfaction with appointed counsels representation. (Id. at pp. 280-281.)
"[A] trial courts duty to permit a defendant to state his reasons for dissatisfaction with his attorney arises when the defendant in some manner moves to discharge his current counsel. The mere fact that there appears to be a difference of opinion between a defendant and his attorney over trial tactics does not place a court under a duty to hold a Marsden hearing." (Lucky, supra, 45 Cal.3d at p. 281.) Because there was no "clear indication" that defendant wanted a substitute attorney, and there was no evidence of a problem other than a disagreement about trial tactics, the trial court was not obligated to conduct a Marsden hearing. (Lucky, supra, 45 Cal.3d at p. 281, fn. 8.)
In People v. Mendez (2008) 161 Cal.App.4th 1362 (Mendez ), at the defendants sentencing hearing, defense counsel indicated the defendant wished to make a new trial motion based on counsels incompetence. (Id. at p. 1365.) When asked what counsel did that was incompetent, the defendant stated eight witnesses had not been called, and two of them stated the defendant did not take part in the fight on which the charges were based. (Id. at p. 1366.) The trial court appointed new counsel for the sole purpose of investigating whether there were grounds for a new trial motion based on the incompetence of trial counsel. Newly appointed counsel reported his conclusion that there were no grounds for a new trial motion, although there might be an issue to be addressed on appeal. The trial court assigned the defense back to defendants trial counsel. (Id. at p. 1368.)
The court concluded that, when the defendant informed his attorney that he was making a new trial motion based on incompetence of counsel, it was sufficient to put the trial court on notice of his request for a Marsden hearing. (Mendez, supra, 161 Cal.App.4th at p. 1367.) Marsden indicated the "`semantics employed by a lay person in asserting a constitutional right should not be given undue weight in determining the protection to be accorded that right." (Mendez, supra, at p. 1367.) The trial court failed to conduct a Marsden hearing; it did not ask defense counsel to respond to defendants allegations, nor did it make a record of defendants complaints and the trial courts response to them. (Mendez, supra, at p. 1368.) Accordingly, the court reversed and remanded for the trial court to hold a Marsden hearing.
Similarly, in People v. Mejia (2008) 159 Cal.App.4th 1081, the court concluded that defense counsels representation to the trial court that defendant wished to make a motion for a new trial based on his counsels conduct at the trial was adequate to put the trial court on notice of defendants request for a Marsden hearing.
In People v. Eastman (2007) 146 Cal.App.4th 688 (Eastman ), at the defendants sentencing hearing, defense counsel informed the court the defendant wished to withdraw his guilty plea. He presented the court with a letter written by the defendants mother, in which she charged that defense counsel and the prosecutor had threatened and intimidated witnesses, and characterized defense counsels defense as "`a waste of time as well as taxpayers money." (Id. at p. 691.) The letter stated that the defendants mother was threatened with incarceration if she did not testify against the defendant, and that defense counsel and the prosecutor persuaded the defendant to plead guilty by falsely representing that his mother was going to testify against him. "The letter closed: `We are hoping to obtain a response to this letter so that Jeffrey Eastman will receive adequate defense and fair treatment in this matter. We trust that you will investigate these charges of misconduct and failure to provide Mr. Eastman with fair and equal treatment as well as a speedy trial (incarcerated almost two years awaiting trial), which is his constitutional right." (Id. at pp. 691-692.)
The court appointed an attorney to determine whether grounds for a new trial motion existed. After investigation, the second attorney concluded there were no grounds for such a motion, and he represented to the trial court that he would not file such a motion. (Eastman, supra, 146 Cal.App.4th at p. 693.) The defendant again submitted a letter reiterating his charges of wrongful conduct by defense counsel and the prosecutor. Without further addressing that issue, the trial court denied the defendants motion to withdraw his guilty plea. The appellate court concluded the defendants letter challenging the adequacy of defense counsels representation required a Marsden hearing.
"That letter required the court to give Eastman an opportunity to articulate his complaints. The letter on its face stated at least one specific factual complaint about Eastmans appointed attorney: that he was acting in cahoots with the district attorney when they persuaded him to accept the plea bargain by falsely telling him his mother was going to testify against him. Although Eastman did not expressly ask to have his attorney replaced, the letter did request that Eastman receive an `adequate defense and his complaints set forth an arguable case that a fundamental breakdown had occurred in the attorney-client relationship that required replacement of counsel. The court was obliged to make a record that this complaint had been adequately aired and considered. [Citation.] Its failure to do so is error." (Eastman, supra, 146 Cal.App.4th at pp. 695-696.)
These cases indicate that, when a defendant asks for replacement counsel, complains that his representation by counsel at trial was inadequate and asks for an adequate defense, or seeks to file a motion for new trial based on alleged incompetence of trial counsel without asking for appointment of new counsel only for the purpose of making that motion, the trial court should interpret the defendants request as a request for appointment of replacement counsel and should conduct a Marsden hearing. When, however, the defendant merely expresses disagreement with defense counsels trial tactics, without requesting replacement counsel, or makes a specific request for relief other than replacement of counsel, then the defendant has not given a "clear indication . . . that he wants a substitute attorney" and the trial court is not required to hold a Marsden hearing. (Lucky, supra, 45 Cal.3d at p. 281, fn. 8.)
The letter sent by defendant to the trial judge included three numbered paragraphs. In the first paragraph, defendant stated there was a "vast breakdown" between him and his attorney, Douglas Foster; he alleged Foster had not responded to his requests that he be provided with materials produced by the prosecution in discovery. Defendant asserted there were materials that, if they had been disclosed to him, would have been used at trial in questioning a prosecution witness. Defendant stated: "I am therefore herewith & now making formal request of you, Sir, to make inquiry of Mr. Foster as to his reasons for failing to provide me with copies of the additional Discovery, as well as to explain why, when this case very much concerns & is about me, why he has failed to keep me informed throughout, save for what I surmise to be his bare minimums."
The second paragraph states: "It would appear to me, Sir, that Mr. Foster has failed in his duty of Attorney-Client communications & relations. If it is in your capacity, I would appreciate it greatly if you could perhaps address him back to the correct path & procedure. Failing that, I would then ask for his subsequent removal as my Counsel, & ask to be placed with Counsel from the Alternate Defense wheel. I can most certainly understand his volumes, re caseload & the like. What I cannot accept, Sir, is being ignored & relatively left out of my own case & proceeding. Again, failing all that, &, if necessary, I will file a Marsden Motion, & make request for Mistrial on grounds of inefficient counsel via breakdown of Attorney-Client communication."
The third paragraph addresses the trial courts conduct, and requests that the judge recuse himself.
The letter does not request either replacement of defense counsel or a Marsden hearing, although it suggests defendant knows what a Marsden motion is and may make one in the future if his concerns are not resolved. Rather, the letters specific, "formal" request seems to be that the court intercede on defendants behalf to cause defense counsel to communicate better with defendant. The letter does not contain any clear indication defendant is asking for appointment of substitute counsel. On the contrary, it expressly reserves that request for some future time, if his counsels communication with defendant fails to improve.
On September 21, 2007, the court mentioned defendants letter and expressly denied defendants request that the judge recuse himself. On October 12, 2007, the court noted that he had seen defendants letter and stated his conclusion that it did not demonstrate a colorable claim of ineffective assistance of counsel. The court set the next hearing for January 9, 2008; it actually took place on January 14, 2008. At that hearing, defendants motion for a new trial was heard. Although there was a three month period between the date on which the court indicated it would take no further action on defendants letter and the next hearing, defendant did not file a Marsden motion or take any other action to request substitute counsel. Nothing in the record indicates he instructed his attorney to base his motion for a new trial on a claim of ineffective assistance of counsel; the motion filed did not include such a claim. At the January 14, 2008, hearing, defendant did not request a Marsden hearing or replacement of his counsel.
A Marsden hearing is not required unless "the defendant in some manner moves to discharge his current counsel." (Lucky, supra, 45 Cal.3d at p. 281, fn. omitted.) Defendant did not move to discharge his attorney in his letter to the court. At most, the letter indicated that he might do so at some time in the future. Consequently, the court was not obligated to conduct a Marsden hearing based on receipt of defendants letter. Failure to conduct a Marsden hearing in response to the letter was not error.
II. Prosecutorial Misconduct
"It is misconduct for a prosecutor to violate a court ruling by eliciting or attempting to elicit inadmissible evidence in violation of a court order. . . . Because we consider the effect of the prosecutors action on the defendant, a determination of bad faith or wrongful intent by the prosecutor is not required for a finding of prosecutorial misconduct." (People v. Crew (2003) 31 Cal.4th 822, 839 (Crew).) "A prosecutor has the duty to guard against statements by his witnesses containing inadmissible evidence. [Citations.] If the prosecutor believes a witness may give an inadmissible answer during his examination, he must warn the witness to refrain from making such a statement. [Citation.]" (People v. Warren (1988) 45 Cal.3d 471, 481.)
"`A prosecutors 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. [Citations.] `Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." (People v. Tafoya (2007) 42 Cal.4th 147, 176 (Tafoya).) "A defendants conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct." (Crew, supra, 31 Cal.4th at p. 839.)
Defendant challenges certain testimony, contending it was elicited by the prosecutor in violation of the courts in limine rulings excluding evidence.
A. Child abuse
Defendant made a motion in limine to exclude any testimony about defendants alleged abuse of his son, both because it was hearsay (Tracy discussed it in pretrial statements, but admitted she was not present when it allegedly occurred), and because it was "highly inflammatory." The prosecutor conceded the information was not relevant, and the court granted defendants motion, excluding "any mention about incidents of what could be characterized as child abuse." The court ordered counsel "not to ask the witness any questions in that regard" and to "instruct her that shes not to offer any information in that regard."
During trial, the prosecutor was inquiring into the reasons Tracy decided to leave defendant. Tracy testified that defendant stated, "It may take days, it may take weeks, it may even take months or years, but I will get even." The prosecutor then asked, "Any other statements by the defendant around the time — approximate time you decided to leave him that placed you in fear for your own safety?" After a defense objection was overruled, Tracy responded, "It wasnt anything that was said. It was the fact that my son who was then 11 was hiding knives by the bed." Defense counsel objected, based on the in limine ruling, and the court sustained the objection and instructed the jury to disregard Tracys statement.
At the next break, outside the presence of the jury, the court stated the witness had volunteered information about her son hiding knives and the court had made an order precluding that. The court then continued:
"And in addition, Ms. Ruiz, I just want you to know I directed Mr. Mangano [the prosecutor] here to let you know you are not to volunteer that information. And I think theres a whole series of things the court has made an order of.
"THE WITNESS: I remember seeing the list.
"THE COURT: Let me just say I want you to pay careful attention. You answer only the questions that you are asked. Dont volunteer anything on the particular categories that I had indicated to Mr. Mangano here that he shared with you. Okay?
"THE WITNESS: Okay."
Shortly after, the following exchange took place.
"Q When you left — when you left the home you shared with your husband, taking your three children, what were you thinking when you left?
"A Guilt that I didnt protect my kids more.
"THE COURT: Stop right there.
"MR. FOSTER: Your Honor, Im going to object. The question is vague, overbroad, 352.
"THE COURT: It is. Sustained. Dont answer."
In the first exchange, the answer about Tracys son hiding knives by the bed was not responsive to the prosecutors question, which asked only about defendants statements that caused Tracy to fear for her own safety. Although the later question, about what Tracy was thinking when she left defendant, was broad and unfocused, it does not appear designed to elicit the prohibited information. In both cases the court sustained defense counsels objection and either instructed the jury to disregard the testimony or instructed the witness not to answer. "When defendants objections are sustained and the court admonishes the jury to disregard the improper comments, we assume the jury will follow the admonishment and any prejudice is avoided." (People v. Mendoza (2007) 42 Cal.4th 686, 702 (Mendoza).)
Tracys statements to the court indicate she was aware of the orders prohibiting testimony about certain subjects and the prosecutor had given her a list of those subjects. The in limine order prohibited testimony about alleged child abuse by defendant. Tracys testimony was not about child abuse by defendant, but about actions taken by her son, possibly in response to abuse, and about her own feelings. The statement about her feeling of guilt was made after the court itself admonished Tracy not to mention the matters that were barred by the in limine orders. Thus, the testimony may have been more the result of a lack of clarity in the order about the scope of the prohibited information, than the result of a failure to advise the witness of the order. Even if Tracys testimony violated the in limine order by suggesting defendants children feared him or needed to be protected from him, the record does not indicate the prosecutor intentionally elicited the testimony, or used deceptive or reprehensible methods to bring it before the jury. The court instructed the jury to disregard the testimony, and it is not reasonably probable that a result more favorable to the defendant would have been reached if the statements had not been made.
B. Administrative segregation and reference to an unspecified "threat"
Defense counsel was concerned that Tracy would mention in her testimony that defendant was in "solitary confinement or some sort of administrative lockdown" or "administrative segregation" at the jail. The prosecutor agreed that information was not relevant, and the court admonished him to advise Tracy not to volunteer that information. During her testimony, Deloise Tritt stated that she reactivated the divorce proceedings by filing an at issue memorandum in August of 2005. The prosecutor asked what happened next in the proceedings; Tritt stated nothing until Detective Cervantes called her about this case. The testimony continued:
"Q So as of August 10th, 2006, nothing had taken place in the divorce proceeding?
"A Well, once Detective Cervantes called me and we knew about this case and what was going on in this case, after Mr. Ruiz was in custody — in fact, after he was in custody and where he was isolated from —"
At this point, defense counsel objected and moved to strike. The trial court mentioned that the prosecutors question had been about August 10th, 2006, and the prosecutor corrected himself, stating, "I meant to say August 2005."
The trial court interpreted Tritts reference to being "isolated" as a reference to defendants administrative segregation at the jail. Based on that interpretation, defendant contends the reference violated the courts in limine order. Nothing in the prosecutors questioning indicates he had any intent to violate the order or elicit prohibited testimony. The questions were not directed to Tracy, the witness the attorneys were concerned might mention defendants jail status. The questions related to the divorce proceedings, not to defendants status in custody, and the prosecutor had no reason to believe they would elicit testimony about defendants jail status. The prosecutor misspoke when he asked about August 2006 rather than 2005, which may have led to a misunderstanding by Tritt of the information he was seeking.
Additionally, even assuming the courts instruction to the prosecutor to advise Tracy not to mention defendants administrative segregation could be interpreted as an order excluding all evidence of that segregation, it is not at all clear that Tritt was referring to defendants jail status in her testimony. In context, we believe it is just as likely she was referring to his isolation from Tracy and the children, which may have influenced the decision to proceed with the divorce at that time. In any event, the jury knew nothing about defendants administrative segregation at the jail, so the reference to defendant being "in custody" and "isolated" could not reasonably have been understood by the jury to refer to his administrative segregation.
After the exchange discussed above, in which Tritt mentioned defendant being "isolated," the prosecutor asked her what happened next in the divorce proceeding after she reactivated it by filing papers in August 2005. Tritt responded:
"A Well, after Mr. Ruiz was in custody Tracy and I again spoke. We decided that — where he was in custody and he had already made this threat
"MR. FOSTER: Objection, your Honor, assumes facts not in evidence, calls for
"THE WITNESS: This was my thinking.
"MR. FOSTER: Excuse me.
"THE COURT: Stop right there. Both of you stop right there. . . ."
In the subsequent discussion out of the jurys presence, there was no mention of the "threat" statement. Defendant did not ask for an instruction to the jury to disregard the comment.
Defendant seems to argue that this testimony of a "threat" violated an in limine order, but he does not specify which order. In context, it appears the "threat" defendant had already made at the time he was in custody was the "threat" posed by his solicitation of third parties to kill both Tracy and Tritt. No in limine order precluded that evidence.
Thus, the record does not demonstrate any prosecutorial misconduct in connection with Tritts trial testimony.
C. Threats to co-workers
Defendant moved to exclude any evidence of the reasons defendant was offered a severance package by his employer, SBC, which the attorneys represented involved threats to, harassment of, or solicitations to harm employees of SBC. The court ruled that the SBC employees who were to testify were to be limited in their testimony to explaining certain documents subpoenaed from SBC. It precluded any witness mentioning the reasons defendant was given a severance package by SBC. Defendant contends this in limine order was violated when Larry Nickerson, one of the inmates allegedly solicited by defendant, testified that defendant had asked him to kill "one of his bosses, a manager," or a "co-worker."
Nickerson mentioned defendants boss, manager, or co-worker three times during questioning by the prosecutor. He testified that defendant asked him if he knew anyone who would kill someone. The prosecutor then questioned him about that conversation.
"Q Okay. Lets just talk about that one right now. After he asked you who did he — did he ask you, excuse me, to kill anyone?
"A Yes. At that point he talked about his wife and an attorney that she had used in a divorce case. And then he asked me would I kill one of his bosses, a manager.
"MR. FOSTER: Objection, Your Honor.
"MR. MANGANO: Q I just want to talk — were just going to talk about the wife and the attorney. Okay, Mr. Nickerson?
"A Okay."
A short time later, the prosecutor asked Nickerson about his next conversation with defendant.
"Q Okay. Approximately when did the next conversation take place?
"A I mean, we had a conversation every day, but on the next one we had another conversation where he brought up his co-worker.
"MR. FOSTER: Objection, Your Honor.
"MR. MANGANO: Q I just want to talk about the attorney, Mr. Nickerson, and the ex-wife. . . ."
The prosecutor subsequently questioned Nickerson about a change in the solicitation request.
"Q Okay. Later — later did it change and the defendant asked you to kill two more people?
"MR. FOSTER: Objection leading.
"THE COURT: Sustained. The last part of the question counsel, you can ask later did it change?
"MR. MANGANO: Q Later did it change?
"A Yes. [¶] ... [¶]
"Q When it changed, what did the defendant ask you?
"A Well, at that time the discussion was to kill one of his managers [sic].
"MR. FOSTER: Objection, Your Honor, can we have a chambers conference, please?
"THE COURT: No. Thats all right. Go ahead. Next question."
Nickerson gave a similar response during questioning by defense counsel. Defendant does not challenge that testimony.
"Q And isnt it true, Mr. Nickerson, that the original conversations regarding Mr. Richardson and Mr. Bermudez, Joe and Curtis, isnt it true that you told Detective Cervantes originally he just wanted them hurt, not killed?
"A At first.
"Q Okay. When did that change?
"A Well, actually, I guess after the paper or something or another. But actually it went from hurting them to hurting his co-workers.
"Q I dont want to talk about the co-worker right now. . . ."
"[A] claim of prosecutorial misconduct is not preserved for appeal if defendant fails to object and seek an admonition if an objection and jury admonition would have cured the injury." (Crew, supra, 31 Cal.4th at p. 839.) "`A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if "`an admonition would not have cured the harm caused by the misconduct." [Citation.]" (People v. Harrison (2005) 35 Cal.4th 208, 243-244.)
Although defendant objected after Nickerson testified about being solicited to kill defendants co-worker, he did not state a ground for those objections, obtain rulings on them, or ask for the court to admonish the jury to disregard the testimony. Nothing in the record indicates that a request for admonition would have been futile, and an admonition would have cured any harm. Thus, defendant failed to preserve the issue for appeal.
In any event, even if defendants objection had been preserved for appeal, and assuming Nickersons testimony violated the in limine order even though his testimony concerned conduct of defendant that occurred after defendant accepted the severance package, rather than the reasons defendant was given a severance package by SBC, Nickersons testimony did not "infect[] the trial with such unfairness as to make the conviction a denial of due process" under the Fourteenth Amendment, or "`involve[] the use of deceptive or reprehensible methods" under California law. (Tafoya, supra, 42 Cal.4th at p. 176.) The prosecutor did not ask Nickerson about the severance package or defendants relationship with other SBC employees. When Nickerson mentioned killing defendants co-worker, the prosecutor told him to just talk about the wife and the attorney. Ignoring that instruction, Nickerson mentioned the co-worker twice more during questioning by the prosecutor and once during questioning by defense counsel. When the prosecutor asked about a change in the requests defendant made to Nickerson, he tried to focus on defendants request that Nickerson "kill two more people," presumably referring to Richardson and Bermudez. Defense counsel objected that the question was leading, and a subsequent less focused inquiry resulted in a mention of defendants manager.
The brief references to defendants co-worker were downplayed by both attorneys. Each indicated he did not want to talk about the co-worker, and continued questioning the witness about other matters. The references did not make the trial fundamentally unfair, nor is it reasonably probable that a result more favorable to the defendant would have been reached if Nickerson had not mentioned the co-worker. (People v. Partida (2005) 37 Cal.4th 428, 439.)
D. Nickersons testimony about threatening phone calls
Early in his testimony, Nickerson testified that he had received threatening phone calls.
"Q Before I do that let me just ask you a couple questions. Do you want to be here today in court?
"A No, sir, I dont.
"MR. FOSTER: Objection relevance.
"THE COURT: Overruled.
"MR. MANGANO: Q Why is that, Mr. Nickerson?
"A My lifes been threatened.
"Q Can you tell us about your life being threatened?
"A Um, I have people to call me and tell me if I testify, whatever, something is going to happen to me.
"MR. FOSTER: Objection, Your Honor.
"THE COURT: Stop counsel. . . ."
After an off-the-record discussion, the court instructed the jury: "But for the time being what the witness has said about receiving phone calls and being threatened, you are not to consider that in any way in this case unless I allow it to come back and you hear some more about it."
The prosecutor then asked Nickerson if he had received any physical injuries, and defense counsel objected.
"MR. FOSTER: Objection, Your Honor. Im going to ask the court to assign misconduct. This is something we just spoke about in the hallway about conversations the District Attorney has had with this witness and not discovered to me.
"THE COURT: Im not going to assign any misconduct. Im going to sustain the objection on the grounds of relevance. Get to the point, counsel . . . ."
The prosecutor later conceded he had learned of the threatening phone calls shortly before Nickersons testimony began, but he failed to disclose that information to defense counsel; therefore, he did not pursue it. He did not have any information connecting the phone calls to defendant. The court determined the jury should be advised of the prosecutors failure to timely disclose information and instructed to disregard Nickersons statements. It instructed the jury using Judicial Council of California Criminal Jury Instructions (2007), CALCRIM No. 222, but added the following language:
"[D]uring Mr. Nickersons testimony he was asked why he may be reluctant to testify in this case, and answered, making reference to phone calls he may have received. At the time, I instructed that you were not to consider that testimony for any purpose unless I directed you otherwise. Both the People and the defense must disclose their evidence to the other side before trial, and within time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. Counsel for the People, Mr. Mangano, failed to disclose the information offered in Mr. Nickersons stricken testimony within the time allowed. Therefore, you are not to consider Mr. Nickersons testimony as to why he may be reluctant to testify for any purpose in this trial, as I already directed you. The People have no evidence whatever that Mr. Nickerson was threatened in relation to this case."
Although the trial court concluded the prosecutor had violated his disclosure obligation, the court not only instructed the jury to disregard Nickersons testimony about threatening phone calls, it also told the jury in no uncertain terms that there was no evidence whatever that Mr. Nickerson was threatened in relation to this case. We assume the jury followed the courts admonition. (Mendoza, supra, 42 Cal.4th at p. 701.)
In light of the trial courts instruction, we do not believe Nickersons testimony rendered the trial fundamentally unfair or denied defendant due process. Nor do we believe it is reasonably probable a result more favorable to defendant would have been reached in the absence of Nickersons testimony about the threatening phone calls.
Considered either separately or cumulatively, the actions defendant charges constituted prosecutorial misconduct did not render the trial so fundamentally unfair as to violate defendants Fourteenth Amendment due process right. To the extent any of the actions amounted to prosecutorial misconduct under California law, it is not reasonably probable that a result more favorable to defendant would have been reached without the misconduct, and therefore the actions did not prejudice defendant. We find no prejudicial error.
III. Other Matters
Defendant also contends his trial was rendered fundamentally unfair by testimony that defendant sought to have his father-in-law killed, by the jury seeing him in shackles one day during the trial, and by the use of an anonymous jury.
Jennifer Verdugo testified that defendant said "he wanted to get rid of his ex-wife, her attorney and the father-in-law," and he later asked her if she knew anyone who "would take [them] out." Defendant did not object to this testimony, and the issue is waived. (Evid. Code, § 353; People v. Rundle (2008) 43 Cal.4th 76, 116, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
On July 26, 2007, defense counsel Foster was out ill and substitute counsel appeared with defendant. The proceedings before the jury that day were brief, involving informing the jury of Fosters illness and instructing the jurors when to return. On July 27, 2007, Foster asserted that, on the previous day, defendant had been shackled and, according to defendant, at least one of the jurors had seen the shackles and reacted to them when defendant rose as the jury entered the courtroom. Foster asked for a mistrial. The court noted substitute defense counsel had not brought this to the courts attention; it denied the motion. After giving Foster time to decide if he wanted a special jury instruction to be given, the court gave a modified version of CALCRIM No. 204, which stated that, on the day Foster was out ill, they may have noticed defendant was in restraints, but that was not evidence and they were to disregard it.
"Prejudicial error does not occur simply because the defendant `was seen in shackles for only a brief period either inside or outside the courtroom by one or more jurors or veniremen." (People v. Tuilaepa (1992) 4 Cal.4th 569, 584.) The jury was aware defendant was in custody because of the testimony regarding his solicitation of fellow inmates to kill Tracy and Tritt. The record indicates that one of the jurors may have seen defendants restraints briefly while defendant was standing as the jury entered on a day when the trial did not go forward because of the illness of defense counsel. The trial court gave a curative instruction. We conclude this brief exposure of defendant in shackles did not result in any prejudicial error. (See People v. Rich (1988) 45 Cal.3d 1036, 1083-1085, holding there was no prejudicial error where defendant was occasionally seen by jurors in shackles as he was being escorted into the courtroom and to the restroom.)
Defendant contends an anonymous jury was used in this case, and its use added to an aura of danger about the case. Generally, an appellate court will not consider procedural defects to which an objection was not made in the trial court, in order to encourage the defendant to bring errors to the attention of the trial court for prompt correction. (People v. Saunders (1993) 5 Cal.4th 580, 589-590.) The trial court proposed to use an anonymous jury and indicated it would advise the jury this procedure was being used to protect their privacy and they should not interpret it as suggesting any threat or risk to their safety. Defendant did not object, which denied the trial court the opportunity to correct any error in light of any such objection. The jury voir dire, including any actual statements of the trial court to the jury, is not part of the record. In light of defendants failure to object in the trial court, and the courts apparent cautionary advice to the jury, we find no prejudicial error in the use of an anonymous jury.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
CORNELL, Acting P.J.
GOMES, J.