Opinion
G043934 Super. Ct. No. 06CF1151
01-10-2012
THE PEOPLE, Plaintiff and Respondent, v. TYRONE CHRISTOPHER RYE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant Tyrone Christopher Rye challenges his convictions for first-degree robbery, possession of a deadly weapon, and street terrorism. He claims insufficient evidence supported the robbery conviction; the court wrongly admitted his entire police interrogation, despite his unequivocal Miranda invocation halfway through it and his unduly prejudicial statements; and the prosecutor committed misconduct by improperly vouching for an expert witness. No reversible error appears. We affirm the judgment.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
There is no cumulative error.
FACTS
In April 2006, a police officer for the City of Orange went to an intersection to investigate a report of a suspicious person wearing a beanie and jacket. He found defendant, who matched the description. The officer approached defendant and made eye contact with him; defendant promptly turned and walked across the street. The officer caught up to defendant, and spoke to him. Defendant put his hands inside his pockets and "mumbled something." The officer ordered defendant to stop and show his hands. Instead, defendant walked away "quickly."
Defendant turned into an alley, pulled a sword from his waistband, and dropped it. He took off his jacket and beanie and jumped over a fence, evading the officer.
Defendant entered the victim's apartment through an unlocked patio door. The victim had never seen defendant before, and told him to leave. Defendant told the victim the police were looking for him and asked to stay. The victim was afraid defendant might be a gang member, and must not be "a good person because the police were following him." The victim became scared defendant might "do something." The victim let defendant stay because he "didn't want him getting angry."
Defendant walked into the kitchen, where there were knives. The victim was "worried" defendant might grab a knife. Instead, defendant drank some water and ate a pear. Defendant announced he wanted to change his clothes. The victim stated there were clothes in the closet. Defendant removed his T-shirt and put on one of the victim's shirts.
The victim went upstairs and told his sister about defendant. She called the police. The victim and his sister went back downstairs — defendant had left.
The police officer responded to the 911 call. When he arrived at the victim's apartment, he saw a woman pointing to defendant. Defendant fled, but was apprehended. Defendant initially told police his name was William Norman Rye, but later gave his real name.
After being read his Miranda rights, defendant began answering a police officer's questions. Defendant stated he was jumped into the Orange Varrio Cypress (OVC) gang at age nine. The same year he stole a bicycle and was arrested for the first time. Since then, he had been arrested about 21 times. He had been "locked up well pretty much [his] whole life," and did not attend junior high school or high school because he "was busted all those years, did eight years straight." He also admitted to recent marijuana use.
Defendant told the detective he had been on the corner "just walking" and "waiting." He conceded carrying the sword, and explained he ran from the police officer because of an outstanding arrest warrant. He claimed the victim was a friend who gave him the water, pear, and shirt. But defendant could not provide the victim's name, telephone number, or address.
At points during his interview, defendant became hostile and expressed frustration with the questioning. About halfway through he told the police: "Dude I'm not gonna incriminate myself. Nah, I'm done. I'm through, that's it, fuck you. You all be backstabbing dude. You're trying to get all kinds of bullshit. Fuck you." He then stated, "Dude, if I'm gonna give you anything, I want it in fucking writing dude," and "I don't give it up to you without seeing something." When the detective responded, "Well that's not the way things work," defendant replied, "Well so sorry."
After this exchange, defendant continued answering the detective's questions. Eventually the detective started a new audiotape and, with no question pending, defendant called out, "Ey who's, who, who, who's, who, who's, who doesn't play those games here?" and "Thumper from Orange . . . (raising voice) what's up. Ey fools get somebody from, that's up with our stuff on it, like . . . ."
The People charged defendant with first degree residential burglary (Pen. Code §§ 459, 460 subd. (a)), first degree robbery (§§ 211, 212.5 subd. (a)), possession of a deadly weapon (§ 12020 subd. (a)(1)), street terrorism (§ 186.22 subd. (a)), misdemeanor resisting a peace officer (§ 148 subd. (a)(1)), and misdemeanor false representation to a peace officer (§ 148.9 subd. (a)). The information alleged defendant committed the burglary, robbery, and weapon possession for the benefit of a criminal street gang. (§ 186.22 subd. (b)(1).) It further alleged pursuant to the "Three Strikes" law (§§ 667 subds. (d) & (e)(1), 1170.12 subds. (b) & (c)(1)) defendant was convicted of one prior serious felony (§ 667 subd. (a)(1)) and served three prior prison terms. (§ 667.5 subd. (b).)
All further statutory references are to the Penal Code unless otherwise stated.
At trial, the police officer and the victim testified about defendant's conduct. The police officer further testified the intersection where he first found defendant is claimed by the OVC criminal street gang.
The detective also testified and, without objection, the prosecution introduced a recording of his interrogation of defendant. The detective also testified as a gang expert. He concluded defendant was an active participant in the OVC gang at the time of his offenses. He explained many of defendant's tattoos relate to the OVC gang. These include: "Orange Varrio Cypress" on his chest, "Southern Comfort," "O.V.C.," and "V Orange" on his arm, "Thumper" on his neck, and "Orange" on his knee. Thumper is defendant's gang moniker. When he was arrested, defendant had scraps of paper in his pocket with the names of known OVC participants written on them. The detective opined that hypothetical offenses mirroring the charged offenses would have been committed for the gang's benefit.
The defense called no witnesses, and instead used closing argument to challenge the detective's credibility and investigation. In rebuttal, the prosecutor told the jury about a ride-along he once took with the detective. Over a defense objection, the prosecutor described watching the detective hugging his wife and children for "a good two, three minutes" to say good-bye because "it could be the last time he ever sees them." He went on to say how "despicable" it was that "the reputation and the integrity of good men" like the detective get "dragged through the mud."
The jury found defendant guilty on all counts except burglary. It found true the gang enhancement as to the weapon possession, but not true as to the robbery. The court later found the prior conviction and prison term allegations to be true, and sentenced defendant to a total state prison term of 20 years.
DISCUSSION
Sufficient Evidence Supports the Robbery Conviction
Defendant contends insufficient evidence shows he used fear to take the victim's water, pear, and shirt. "Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) "The element of fear for purposes of robbery is satisfied when there is sufficient fear to cause the victim to comply with the unlawful demand for his property." (People v. Ramos (1980) 106 Cal.App.3d 591, 601602.) Fear can '""be established by proof of conduct, words, or circumstances reasonably calculated to produce fear."'" (People v. Brew (1991) 2 Cal.App.4th 99, 104.) "It is not necessary that there be direct proof of fear; fear may be inferred from the circumstances in which the property is taken." (People v. Morehead (2011) 191 Cal.App.4th 765, 775.)
Courts have a "limited role . . . in assessing the sufficiency of the evidence supporting a conviction." (People v. Lewis (2001) 25 Cal.4th 610, 643.) In determining the sufficiency of evidence to support a conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "'The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt.'" (People v. Johnson (1980) 26 Cal.3d 557, 576.)
Here, substantial evidence shows defendant used fear to take the victim's property. Defendant was a stranger who broke into the victim's home while running from the police, and refused the victim's order to leave. The victim relented only because he "didn't want [defendant] getting angry" and was afraid defendant might "do something." The victim felt defendant must not be "a good person because the police were following him," and was possibly a gang member. Before defendant took the water and pear, the victim was "kind of worried" he would grab a knife. From this evidence, the jury could reasonably conclude defendant took the water, pear, and shirt through the use of fear.
Defendant's counterarguments are unavailing. In his opening brief, he contends nothing showed his specific intent to frighten the victim. But as he concedes in his reply brief, the California Supreme Court has clarified robbery does not contain any "heretofore unidentified element of intent to cause the victim to experience force or fear." (People v. Anderson (2011) 51 Cal.4th 989, 995.) "The intent required for robbery" is "the specific intent to deprive the victim of the property permanently." (Id. at p. 994.) As a fallback position on reply, defendant contends the use of fear necessarily requires knowledge of that fear, and no substantial evidence showed he knew the victim was afraid. "Withholding a point until the reply brief deprives the respondent of an opportunity to answer it, however. Hence, a point raised for the first time therein is deemed waived and will not be considered, unless good reason is shown for failure to present it before." (People v. Baniqued (2000) 85 Cal.App.4th 13, 29, fn. omitted.) No good cause appears here. And defendant cites no persuasive authority to support any such knowledge requirement, which would run counter to the high court's analysis in Anderson. In any event, substantial evidence could have led the jury to reasonably conclude defendant knew the victim — whose apartment he had just broken into while running from the police — was afraid.
Defense Counsel Did Not Render Ineffective Assistance by Failing to Object to Admission of Defendant's Police Interrogation
Defendant contends the court wrongly admitted the second half of his police interrogation. He asserts he unequivocally invoked his Miranda right to remain silent halfway through his police interview by stating, "I'm not gonna incriminate myself. Nah, I'm done. I'm through, that's it, fuck you." "Dude, if I'm gonna give you anything, I want it in fucking writing dude"; and "I don't give it up to you without seeing something."
Defendant concedes he forfeited this challenge by not raising it below, but urges us to reach the merits anyway. He claims "this was an egregious violation of 'one of our Nation's most cherished' rights." He asserts this is a purely legal issue that "does not depend upon the resolution of disputed facts and evaluations of credibility." And he contends the failure to object constitutes ineffective assistance of counsel. For that last reason, we will address the issue.
An ineffective assistance of counsel claim has two prongs. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) First, a convicted defendant "must show that counsel's representation fell below an objective standard of reasonableness." (Id. at 688.) "Second, the defendant must show that the deficient performance prejudiced the defense [and] deprive[d] the defendant of a fair trial . . . ." (Id. at 687.) "[T]he standard for judging counsel's representation is a most deferential one." (Harrington v. Richter (2011) __ U.S. __ [131 S.Ct. 770, 788].) Neither prong is met here.
First, "failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight." (People v. Kelly (1992) 1 Cal.4th 495, 520.) "A reviewing court will not second-guess trial counsel's reasonable tactical decisions." (Ibid.) To be sure, we may review counsel's decision when "'"there simply could be no satisfactory explanation"'" (ibid.) for failing to object, as defendant insists is true here. We disagree.
Defense counsel may have reasonably refrained from objecting out of recognition the objection lacked merit. "The failure to object to admissible evidence does not constitute ineffective assistance of counsel when to do so would have been futile." (People v. Ferraez (2003) 112 Cal.App.4th 925, 934.)
For a Miranda objection to be sustained, the invocation of rights must be unequivocal. "If the right to counsel or the right to remain silent is invoked at any point during questioning, further interrogation must cease." (Berghuis v. Thompkins (2010)__ U.S.__[130 S.Ct. 2250, 2263-2264].) But a suspect must invoke these Miranda rights "unambiguously." (Id. at p. 2260 [right to remain silent]; accord Davis v. U. S. (1994) 512 U.S. 452, 459 [right to counsel].) A statement "'that is ambiguous or equivocal'" is insufficient, and "the police are not required to end the interrogation, [citation], or ask questions to clarify whether the accused wants to invoke his or her Miranda rights." (Berghuis, at pp. 2259-2260.) A statement is "ambiguous or equivocal" if "a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right . . . . ." ( Davis, at p. 459.) "A defendant has not invoked his or her right to silence when the defendant's statements were merely expressions of passing frustration or animosity toward the officers . . . ." (People v. Rundle (2008) 43 Cal.4th 76, 115, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Nor is a purported invocation unequivocal if it is "conditional" — for example, a statement that the suspect "wanted a lawyer if he was going to be charged. ' " (People v. Gonzalez (2005) 34 Cal.4th 1111, 1126.)
Here, defendant's statements were equivocal. He did not ask for a lawyer. Nor did he remain silent. Instead, he stated: "I'm not gonna incriminate myself. Nah, I'm done. I'm through, that's it, fuck you." "Dude, if I'm gonna give you anything, I want it in fucking writing dude"; and "I don't give it up to you without seeing something." A reasonable police officer could have understood these statements as "expressions of passing frustration or animosity toward the" officer. (Rundle, supra, 43 Cal.4th at p. 115; accord People v. Williams (2010) 49 Cal.4th 405, 432 ["'I want to see my attorney cause you're all bullshitting now'" was "an expression of frustration and . . . game playing"].) The statements also could have been reasonably construed as conditional — "if you don't give me some kind of written plea agreement, then I will remain silent and demand a lawyer." (Cf. People v. Gonzalez, supra, 34 Cal.4th at p. 1126.) Either way, defendant's statements were sufficiently ambiguous for the detective to continue the interrogation. Because defendant did not unequivocally invoke his Miranda rights, any objection based thereon would have been properly overruled.
And even if defendant's invocation was unequivocal, counsel could not have successfully objected to defendant's identifying himself as "Thumper from Orange." "Volunteered statements of any kind are not barred by the Fifth Amendment." (Miranda, supra, 384 U.S. at p. 478.) "Miranda safeguards are required only where the suspect is interrogated, that is, subjected to 'words or actions . . . that the police should know are reasonably likely to elicit an incriminating response.'" (People v. Ray (1996) 13 Cal.4th 313, 336.) "It follows that not all statements obtained by the police from a suspect who is incarcerated or otherwise confined are the product of interrogation. Nothing in Miranda is intended to prevent, impede, or discourage a guilty person, even one already confined, from freely admitting his crimes, whether the confession relates to matters for which he is already in police custody or to some other offense." (Id. at p. 337.) Defendant shouted "Thumper from Orange" during a break in the interrogation, as a new audiotape was being installed. There was no pending question "'reasonably likely to elicit an incriminating response.'" (Id. at p. 336.) There was no question pending at all. Thus, this statement was "not elicited as the result of interrogation." (Id. at p. 337.) It would have been futile for defense counsel to object to its admission.
Second, even if defense counsel deficiently failed to object, the error was not prejudicial. (Strickland, supra, 466 U.S. at p. 687.) To obtain reversal for ineffective assistance, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.)
No reasonable probability exists that defendant would have obtained a different result had the court excluded the second half of the interrogation. Besides defendant's statements therein, other evidence overwhelmingly showed his guilt. The victim's testimony, which the jury credited, established every element of robbery. Defendant's lies to the police about his identity and friendship with the victim showed a consciousness of guilt. (People v. Hughes (2002) 27 Cal.4th 287, 335 ["false statements by a defendant" to police may "demonstrate consciousness of guilt"].) Before his purported Miranda invocation, defendant told the police he had been jumped into the OVC gang. He was arrested in gang territory with a list of known OVC gang members in his pocket. His body is covered with OVC tattoos. And defendant identified himself as "Thumper from Orange," a statement that would have been admissible over a Miranda objection.
Defendant does not contend admission of the interrogation prejudiced the weapon possession or misdemeanor convictions.
Moreover, the second-half statements that defendant contends would have prejudiced the defense were not all that damaging. He contends the jury may have been swayed by his additional falsehoods and "verbal sparring with the detective." But these statements added little to those he made during the first half of the interview, which he concedes were admissible. Thus, even if counsel's failure to object were somehow deficient, it was not sufficiently prejudicial to warrant reversal.
Any Error in Admitting Defendant's Prior Criminal History Was Harmless
Independent of his Miranda claim, defendant contends the court wrongly admitted portions of his police interrogation regarding his past criminal history. He maintains his statements about his prior arrests, incarceration, and drug use were irrelevant and unduly prejudicial.
"No evidence is admissible except relevant evidence." (Evid. Code, § 350.) And a "court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . ." (Evid. Code, § 352.) But the judgment may not "be reversed, by reason of the erroneous admission of evidence unless: (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made . . . ." (Evid. Code, § 353.)
Defendant concedes he forfeited his claim by failing to object, but asserts that oversight constitutes ineffective assistance of counsel. Not so. Even if counsel's failure to object was deficient, the defense suffered no prejudice. (Strickland, supra, 466 U.S. at p. 687.) As we just recounted, there was overwhelming evidence to support the robbery and street terrorism convictions and the gang enhancement: the victim's credited testimony, defendant's false statements to the police, his concession of having been jumped in to OVC, his presence in gang territory with a list of gang members, his many gang tattoos, and his declaration he is "Thumper from Orange." No reasonable probability exists defendant would have obtained a different result had the court excluded his statements about his past criminal history. (Id. at p. 694.)
On this point too, defendant asserts no prejudice with respect to the weapon possession or misdemeanor convictions.
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The Prosecutor's Improper Vouching Does Not Warrant Reversal
Defendant contends the prosecutor committed prejudicial misconduct by improperly vouching for the detective's credibility. "' A prosecutor is prohibited from vouching for the credibility of witnesses . . . by referring to evidence outside the record. . . . .'" (People v. Dickey (2005) 35 Cal.4th 884, 913.) The prosecutor's story in rebuttal about the detective hugging his family constituted improper vouching, as the Attorney General concedes. "But 'we find no reasonable probability that defendant was prejudiced by' this improper vouching." (People v. Turner (2004) 34 Cal.4th 406, 433; accord People v. Sully (1991) 53 Cal.3d 1195, 1236 [a single "brief [and] innocuous" remark, "followed immediately by references to evidence bearing on witness credibility," had "no conceivable prejudice to defendant"].) There was abundant evidence of defendant's guilt, the bulk of which did not hinge upon the detective's credibility. The prosecutor's misconduct was harmless.
DISPOSITION
The judgment is affirmed.
IKOLA, J. WE CONCUR:
O'LEARY, ACTING P. J.
ARONSON, J.