Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment (order granting probation) of the Superior Court of Los Angeles County, No. BA329364Stephen A. Marcus, Judge.
Donald M. Ré for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Roberta L. Davis and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Shahram Ali Shayesteh appeals from the judgment (order granting probation) entered following his conviction by jury of criminal threats (Pen. Code, § 422). The court ordered appellant placed on formal probation for four years on the condition that he serve 360 days in the county jail. We affirm the judgment.
FACTUAL SUMMARY
1. People’s Evidence.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that in 2006, Daniel Crespo was a council member of the Bell Gardens City Council and was a Los Angeles County probation officer. The council was scheduled to vote at a meeting on Monday, November 13, 2006, concerning the awarding of an exclusive five-year, $5 million contract to a towing company for the providing of towing services for the city’s police department.
a. Events Up to and Including Appellant’s Offer to Give Crespo a Truck and Appellant’s Recall Comment.
Prior to November 13, 2006, Crespo’s friend, Maywood City Councilmember Sam Pena, asked Crespo to meet with appellant, whom Pena described as one of Pena’s friends and the owner of a towing company. Crespo met with Pena, appellant, and appellant’s associate in a Bell Gardens restaurant in early November 2006, prior to November 13, 2006. Appellant was introduced as the owner of United Motors Tow Company (United). During the meeting, appellant explained that United could provide better service than United’s competitor, appellant invited Crespo to visit United’s facility, and appellant gave Crespo a tour of the facility that same day.
During the tour, Crespo saw a large truck which had huge tires, and he asked if the truck was real. Appellant replied that it was and asked Crespo if he wanted it. Crespo testified that appellant later mentioned “something about a recall, how much would it take... to pay to remove the council -- [¶]... [¶] -- to do a recall on the council.” Crespo also testified he felt that appellant was saying “you don’t support me, ... I’ll pay to remove you to do a recall.” (Sic.) Crespo considered appellant’s recall comment as a political threat and not a threat to Crespo’s personal safety.
b. Events Up to and Including the November 13, 2006 Council Meeting.
A staff report prepared by the city manager for the November 13, 2006 council meeting reflected the recommendation of Bell Gardens Police Chief Keith Kilmer that the city retain United, and United’s competitor, Southside Towing (Southside). Crespo agreed with the staff report, and indicated during the November 13, 2006 council meeting that he wanted to retain both companies.
Crespo made a motion at the meeting that the council retain both companies, but the motion did not pass. The council members subsequently voted unanimously to give an exclusive contract to United. If both companies had been selected, each would have had to pay to the city a franchise fee of $25,000. During the meeting, Crespo asked appellant if he would be willing to pay a $50,000 franchise fee, and appellant replied yes. The council subsequently voted that United pay a $50,000 franchise fee.
After the council meeting, Crespo went to appellant to congratulate him for winning the contract. Appellant refused to shake Crespo’s hand and, instead, told Crespo, “ ‘You fucked up. You fucked up. You watch. You’re going to pay. You cost me [$]25, 000 more. You fucked up.’ ” Appellant was serious. Crespo was shocked, because appellant was aggressive, threatening, and completely different than he had been at his facility. Crespo testified he could see appellant’s facial expression. Crespo felt threatened because of appellant’s facial expression. Crespo could see appellant’s teeth, and appellant was angry. Crespo felt that if no one had been there, appellant would have attacked Crespo.
After the November 13, 2006 meeting, but before February 2007, Crespo again went to United’s facility after appellant’s partner invited Crespo. The partner apologized to Crespo and said appellant was hotheaded and explosive. Pena later told Crespo not to take the threat seriously, that appellant apologized and was hotheaded, and that it would never happen again.
c. Events Up to and Including the February 28, 2007 Subject Threat.
Prior to February 2007, the Legislature voted to allow cities to set their own towing policies, including reducing the impound period. One item on the agenda for the February 28, 2007 council meeting was a proposal to reduce the impound period. If the proposal passed, the city and United would receive less impound fees.
The day before the council meeting, appellant called Crespo. Appellant indicated to Crespo that appellant did not know anything about modifying the contract, the contract could not be modified, and appellant would be speaking with his attorney. Appellant indicated he would sue if the city changed the contract.
About 1:00 p.m. on February 28, 2007, Bell Gardens Councilmember Mario Beltran called Crespo. Beltran referred to the council meeting scheduled to occur at 5:00 p.m. and told Crespo that appellant said it was okay to modify the contract. Crespo did not believe Beltran. Beltran said he had the support of two other council members and they wanted Crespo to vote. Crespo replied that Beltran was asking for a consensus in violation of the Brown Act, Crespo did not want to discuss the matter, and they would discuss it at the council meeting. Beltran indicated, inter alia, that the other council members did not want to vote for the modification unless Crespo did. Crespo indicated he would discuss the matter only during the open meeting.
Beltran then asked if Crespo liked appellant. Crespo replied no because appellant previously had threatened him, but Crespo said he would still vote. Beltran put Crespo on hold twice, then Crespo heard appellant’s voice. About five minutes had passed from the time Beltran asked if Crespo liked appellant to the time Crespo heard appellant’s voice. Appellant said, “ ‘You fucking piece of shit. You don’t know who you’re fucking with. I’ll fuck you up, you fucking piece of shit.’ ” Crespo also testified that appellant said, “ ‘You don’t know who you’re fucking with. I’m going to fuck you up. You don’t know who you’re fucking with.’ ” (We refer to these statements as the subject threat.) Crespo did not recall whether what appellant said was, “ ‘I’ll fuck you up’ or ‘I’m going to fuck you up.’ ”
Crespo felt threatened because this had never happened before. Unlike the case when appellant previously had used profanity, appellant was yelling. Crespo was afraid. He was in his car and did not know where appellant was. Crespo testified that when appellant said, “ ‘Fuck you up, I’m going to fuck you up, ’ ” that meant to Crespo that appellant was going to beat him up, hurt him or harm him. Crespo was shocked. Crespo thought about the fact that, in a few hours, Crespo would attend the council meeting and appellant would probably be present. Crespo did not respond to appellant, but heard something like Beltran laughing over the phone. Crespo hung up.
The People prosecuted the criminal threat charge based on the subject threat. That threat was also the basis for a charge that appellant resisted an executive officer in violation of Penal Code section 69. The jury acquitted appellant of the latter charge.
After Crespo hung up, he called the corruption unit of the Los Angeles County District Attorney’s Office and left a message. Crespo also called his congresswoman and a colleague at Los Angeles County Supervisor Gloria Molina’s office. Crespo spoke to one of Molina’s deputies, called the district attorney’s office again and left a message, and called Kilmer. Crespo indicated that Crespo made a police report and, within a couple of days, applied for a restraining order. Crespo asked the city manager if he could patrol Crespo’s home. Appellant knew where Crespo lived.
On February 28, 2007, Crespo called the Los Angeles Police Department (LAPD), filed a complaint, and gave a statement. In the statement, Crespo said he had “received a call from a council member and... the tow owner was on the other line without [Crespo] knowing, and threatened [Crespo].” In the statement, Crespo also said, “he said, ‘You piece of shit. I’m going to fuck you up. You don’t know who you’re fucking with. You piece of shit. I’m going to fuck you up.’ ” Crespo attended the February 28, 2007 council meeting and, without identifying anyone, indicated during the open meeting what had happened.
At the trial, Crespo testified on January 8, 2009, that he was still impacted by the subject threat. As a result of it, Crespo was still in therapy, but he did not remember when the therapy began. Crespo did not believe he saw or talked with appellant after the subject threat.
2. Defense Evidence
In defense, Kilmer, who was the police chief since June 2006, testified he authored the staff report which recommended that the towing contract be awarded to United and Southside. Kilmer was asked during direct examination whether, prior to the November 13, 2006 city council meeting, he was informed that United or someone associated with United had threatened a council member. Kilmer replied, “[p]rior to November -- I’ve never been put on notice except for the Los Angeles Police Department case. [¶]... [¶] So the answer would be, no, I was not notified.”
Kilmer attended the November 13, 2006 council meeting but did not recall Crespo then complaining that appellant had threatened Crespo. Kilmer also testified as follows. A couple of minutes after the November 13, 2006 meeting, Crespo apparently approached appellant and said, “ ‘I just want to talk to you.’ ” Appellant indicated he did not want to talk with Crespo and had no reason to talk with him. Crespo kind of looked at Kilmer, and repeatedly said, “ ‘I just want to talk to the guy.’ ” Appellant and Crespo did not subsequently speak. Appellant was not United’s owner. Kilmer had no interest in the outcome of this case and had not wanted to testify. Crespo did not, around February 28, 2007, tell Kilmer that appellant had threatened Crespo.
The prosecutor asked Kilmer if, shortly after February 28, 2007, he had reason to believe that Crespo felt that he had been threatened, and the court then asked Kilmer if he had received information along the lines that Crespo had been threatened. Kilmer replied, “[a]t some point, there was a threat, alleged threat made during a telephone conversation, and it was reported to Los Angeles Police Department. I learned of that after the fact at some point, but I don’t recall how.”
CONTENTIONS
Appellant claims (1) there is insufficient evidence supporting his conviction, (2) the trial court erroneously denied his Faretta motion, (3) Crespo presented inadmissible testimony, violating appellant’s right to a fair trial, (4) the prosecutor committed misconduct, and (5) error occurred when evidence impeaching Crespo was not admitted.
Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta).
DISCUSSION
1. Sufficient Evidence Supported Appellant’s Conviction.
Penal Code section 422, states, in relevant part, “[a]ny person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished....”
In People v. Toledo (2001) 26 Cal.4th 221, our Supreme Court stated, “In order to prove a violation of [Penal Code] section 422, the prosecution must establish all of the following: (1) that the defendant ‘willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person, ’ (2) that the defendant made the threat ‘with the specific intent that the statement... is to be taken as a threat, even if there is no intent of actually carrying it out, ’ (3) that the threat -- which may be ‘made verbally, in writing, or by means of an electronic communication device’ -- was ‘on its face and under the circumstances in which it [was] made, ... so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, ’ (4) that the threat actually caused the person threatened ‘to be in sustained fear for his or her own safety or for his or her immediate family’s safety, ’ and (5) that the threatened person’s fear was ‘reasonabl[e]’ under the circumstances. [Citation.]” (Id. at pp. 227-228.) Fear is “sustained” for purposes of the section when it is for a period of time that extends beyond what is momentary, fleeting, or transitory. (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)
As the court observed in the case of In re Ryan D. (2002) 100 Cal.App.4th 854 (Ryan D.), “the statute ‘was not enacted to punish emotional outbursts, it targets only those who try to instill fear in others.’ (People v. Felix (2001) 92 Cal.App.4th 905, 913....) In other words, [Penal Code] section 422 does not punish such things as ‘mere angry utterances or ranting soliloquies, however violent.’ [Citation.]” (Ryan D., supra, at p. 861.)
Moreover, “the determination whether a defendant intended his words to be taken as a threat, and whether the words were sufficiently unequivocal, unconditional, immediate and specific [that] they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat can be based on all the surrounding circumstances and not just on the words alone. The parties’ history can also be considered as one of the relevant circumstances.” (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340.)
Finally, when a defendant challenges on appeal the sufficiency of the evidence, “Our power as an appellate court begins and ends with the determination whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, to support the judgment. [Citation.]” (People v. Hernandez (1990) 219 Cal.App.3d 1177, 1181-1182.)
Given the parties’ history, the subject threat, and appellant’s complaints to others about the threat (see People v. Brown (1994) 8 Cal.4th 746, 761), we conclude there was sufficient evidence to convince a rational trier of fact, beyond a reasonable doubt, that appellant committed a violation of Penal Code section 422. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.) This includes sufficient evidence that appellant willfully threatened to commit a crime which would result in great bodily injury or death to Crespo. The fact that there may have been alternate explanations for the threat is not controlling.
To the extent appellant raises a First Amendment issue, he waived it by failing to raise it during trial. (Cf. People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7.)
2. The Trial Court Properly Denied Appellant’s Faretta Motion.
a. Pertinent Facts.
After the court, on January 8, 2009, excused Crespo as witness for the day, the court commented outside the presence of the jury that appellant had spent about two and a half hours cross-examining Crespo, and the court impressed upon appellant that he would have only about 20 minutes more for cross-examination.
The following then occurred: “The Defendant: May I, your Honor. [¶] The Court: I need you to not talk to me because you’re represented by counsel. [¶] The Defendant: I want to represent myself too. That’s the reason my question. [Sic.] [¶] The Court: Well, you can’t do that. You cannot do that. [¶] The Defendant: Why not? [¶] The Court: Because the law doesn’t allow you to do it. You cannot be pro per and have a lawyer as well. [¶] The Defendant: Well, I can’t have him on this side because there’s so many things that is being said on different transcript that is not brought up right now. [Sic.] [¶] The Court: You can confer with your lawyer. You can fire your lawyer. There are many things you can do. But you cannot be pro per and have private counsel too. That does not exist. Okay? [¶] The Defendant: Thank you. [¶] The Court: Why don’t you talk to your lawyer about it.”
During jury argument, appellant urged Crespo’s testimony was fabricated, but Kilmer’s testimony was “very direct and very clear and very precise in what he knew and didn’t know” and Kilmer’s “credibility was unquestioned.” Appellant was represented at trial by private counsel.
b. Analysis.
Appellant claims the trial court erroneously denied his Faretta motion. We conclude otherwise. “The Sixth Amendment to the United States Constitution, applicable to state criminal proceedings, gives a defendant the right of self-representation as well as the right to be represented by counsel. These rights are mutually exclusive. [Citations.] The right to self-representation is waived unless the defendant makes an articulate and unmistakable demand to proceed pro se. [Citations.] A Faretta request must be unequivocal. [Citation.]... In determining whether the request is unequivocal, ‘ “the court’s duty goes beyond determining that some of [the] defendant’s words amount to a motion for self-representation. The court should evaluate all of a defendant’s words and conduct to decide whether he or she truly wishes to give up the right to counsel and represent himself or herself and unequivocally has made that clear.” ’ [Citations.] [¶] ‘ “In determining on appeal whether the defendant invoked the right to self-representation, we examine the entire record de novo. [Citation.]” ’ [Citations.]” (People v. Weeks (2008) 165 Cal.App.4th 882, 886-887.) The court should draw every reasonable inference against waiver of the right to counsel. (People v. Marshall (1997) 15 Cal.4th 1, 23.)
In People v. Marlow (2004) 34 Cal.4th 131, our Supreme Court stated, “[w]e conclude, ... that defendant did not make an unequivocal request for self-representation. Reading the pertinent exchange in the context of defendant’s frustration with his inability to obtain the counsel of his choice, we find it clear that defendant’s inquiry-‘Is it possible that I just go pro per in my own defense and have someone appointed as co-counsel?’-was a request for information, not a Faretta motion.... This conclusion is strengthened by consideration of the ensuing discussion, in the course of which defendant, far from adverting to any desire for self-representation, reiterated his concern that any counsel eventually appointed to represent him would be disadvantaged....” (Id. at p. 147.)
In the present case, the court told appellant that he was represented by counsel. Appellant then said he wanted to represent himself too. That is, he impermissibly wanted to represent himself and be represented by counsel. Moreover, appellant said, “[t]hat’s the reason my question.” (Sic.) This indicated a request for information, not a Faretta motion. When the court told appellant he could not do that, appellant asked, “Why not?” thereby seeking further information. Appellant later stated he could not have “him on this side.” (Italics added.) This statement was ambiguous, was not an express request for self-representation alone, and reasonably could have been construed merely as a desire for new counsel. We conclude appellant did not make an unequivocal request for self-representation. (Cf. People v. Marlow, supra, 34 Cal.4th at p. 147.) He waived the issue of whether he could represent himself. (See People v. Weeks, supra, 165 Cal.App.4th at p. 886.)
To the extent appellant claims the trial court should have made further inquiry of appellant if his request was ambiguous, we deny the claim because he asserts it perfunctorily without citation to authority. (Cf. People v. Jones (1998) 17 Cal.4th 279, 305.)
Moreover, even if appellant made an unequivocal request to represent himself, he made it, not merely on the eve of, but during, trial. Accordingly, any request for self-representation was untimely and simply addressed to the wide discretion of the court. (Cf. People v. Clark (1992) 3 Cal.4th 41, 99-100; People v. Windham (1977)19 Cal.3d 121, 128, fn. 5.)
In the present case, and, as to the quality of counsel’s representation of appellant, we have reviewed the record of the examination of Crespo, the sole People’s witness, and Kilmer, the sole defense witness, and that record does not demonstrate ineffective assistance of counsel. Appellant makes no separate ineffective assistance contention in his brief. Appellant did not articulate below a reasonable basis for dissatisfaction with his trial counsel’s performance. Appellant waited until almost the end of the testimony of Crespo, the People’s sole witness, to make any request for self-representation. The trial court reasonably could have concluded substantial delay would have followed the granting of appellant’s request, especially since he suggested there were “so many things” that were not being introduced at trial. A midtrial Faretta motion may be denied on the ground that delay or a continuance would be required. (People v. Valdez (2004) 32 Cal.4th 73, 103.)
We conclude the trial court did not abuse its discretion by denying any request by appellant for self-representation. (Cf. People v. Marshall, supra, 15 Cal.4th 1, 20-27; People v. Clark, supra, 3 Cal.4th at pp. 98-101; People v. Perez (1992) 4 Cal.App.4th 893, 903.)
Finally, the People prosecuted this case based on the February 28, 2007 subject threat. Although appellant’s defense was that Crespo’s testimony was fabricated, the jury by their verdict resolved the credibility issue against appellant. Moreover, appellant argued to the jury that the credibility of Kilmer, a defense witness, was undisputed. Kilmer himself suggested that some time after February 28, 2007, someone threatened Crespo during a telephone conversation, and the threat was reported to LAPD. Appellant has failed to demonstrate how a result more favorable to him would have occurred if he had represented himself. Any error in denying any untimely motion by appellant to represent himself was not prejudicial under any conceivable standard. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836; People v. Nicholson (1994) 24 Cal.App.4th 584, 594; Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].)
3. Crespo’s Testimony About Appellant’s Possession of Heroin Does Not Warrant Reversal of the Judgment.
a. Pertinent Facts.
On January 8, 2009, the prosecutor asked Crespo during direct examination if he needed treatment as a result of the subject threat. Crespo’s reply referred to what he “learned afterwards.” At sidebar, the court indicated it was obvious that Crespo wanted to testify that he learned something about appellant that caused Crespo to have more fear of appellant than the fear caused by the threat. The court also indicated that whether Crespo would be able to testify about what he had learned would depend upon whether his testimony was based on admissible evidence. In open court, the prosecutor asked if Crespo had been in therapy as a result of the subject threat, and Crespo replied yes.
Later, outside the presence of the jury, the following occurred: “[The Court:] Mr. Crespo, there’s apparently some information -- I don’t even know what it is -- that you learned from Google or whatever sources. The D.A. has relayed to me that that information is not admissible. It’s inadmissible evidence; so you will not be permitted to state it unless the defense lawyer asks you in some way that the answer -- the information you have is responsive to one of his questions. But you can’t just blurt it out because it will cause a mistrial. [¶] Do you understand what I said? [¶] The Witness: Yes. [¶] The Court: The rules of evidence apply to you just like they would apply to anybody that is a witness in this case. Okay? [¶] The Witness: Okay.”
On January 9, 2009, after Crespo testified during cross-examination that he never saw appellant at Crespo’s home or at any city event, the following occurred: “Q. [Appellant’s counsel:] And then, lastly, as a result of this, you received significant media attention; correct? [¶] [The Prosecutor]: Objection. Relevance. [¶] The Court: Overruled. I’ll allow that. [¶] The Witness: The media, yeah. That’s where I learned that your client had 500 pounds -- [¶] [Appellant’s Counsel]: Objection. [¶] The Witness: -- of heroin. [¶] [Appellant’s Counsel]: Objection, your Honor. Nonresponsive. [¶] The Court: The jury is going to be told to disregard that. [¶] [The Prosecutor]: If the witness could be instructed to answer ‘yes’ or ‘no.’ [¶] The Court: Anyway, the answer is stricken. But I would caution defense counsel, you’re going into areas that may open the door to all kinds of things.” Appellant made no motion for a mistrial.
During its final charge to the jury, the court gave CALCRIM No. 222. The instruction stated, inter alia, “If I ordered testimony stricken from the record you must disregard it and must not consider that testimony for any purpose.”
b. Analysis.
Appellant claims Crespo presented inadmissible testimony, violating appellant’s right to a fair trial. Appellant waived the issue of whether his right to a fair trial was violated by failing to raise that issue below when Crespo presented the challenged testimony. (Cf. People v. Catlin (2001) 26 Cal.4th 81, 122-123.)
Even if the issue was not waived, appellant does not expressly state that the trial court erred or that the prosecutor committed misconduct in connection with the challenged testimony by Crespo. Appellant fails to cite authority for the proposition that, in this circumstance, Crespo’s testimony may be viewed as a violation of appellant’s right to a fair trial. We evaluate the alleged error using the standard enunciated in People v. Watson, supra, 46 Cal.2d at page 836. (Cf. People v. Page (2008) 44 Cal.4th 1, 41-42.)
In the present case, appellant assumes, but has not demonstrated, that appellant’s alleged possession of heroin was the inadmissible information to which the court was referring when it admonished Crespo not to divulge same. We note the trial court said it did not know what the inadmissible information was, and the court did not advise Crespo that he had violated the court’s admonition. In any event, the court told the jury they were going to be told to disregard Crespo’s answer, and the court struck it. The court did not erroneously admit the evidence. During its final charge, the court instructed the jury that if it ordered testimony stricken, the jury must disregard it. The jury is presumed to have followed the court’s instruction (People v. Sanchez (2001) 26 Cal.4th 834, 852) which, we conclude, cured any harm. A mistrial motion was available if appellant’s chances of receiving a fair trial had been irreparably damaged (People v. Bolden (2002) 29 Cal.4th 515, 555) but, we note, appellant made no such motion. The jury resolved against appellant any credibility issue as to whether appellant made the subject criminal threat and we have already discussed the significance of appellant’s concession that Kilmer was credible. No due process violation occurred, and any other error was not prejudicial under any conceivable standard. (People v. Watson, supra, 46 Cal.2d at p. 836; Chapman v. California, supra, 386 U.S. at p. 24.)
4. The Prosecutor Did Not Commit Misconduct.
a. No Griffin Error Occurred.
(1) Pertinent Facts.
During appellant’s jury argument concerning count 1 (Pen. Code, § 69, resisting an executive officer), he urged that, because Crespo was not in favor of modifying the contract to reduce the impound period, it made no sense for the People to argue that appellant was trying to deter an executive officer (see fn. 3, ante).
Responding to appellant’s argument, the prosecutor took issue with appellant’s argument that he had no motive to threaten Crespo. The prosecutor argued that appellant may have thought Crespo was the council member who wanted to amend his contract but in fact Crespo was not in favor of amending the contract. He commented without objection, “Ladies and gentlemen, you’re being asked to make a big assumption. You’re... asked to make the assumption that the defendant really had a good idea of what was going on. There’s no evidence of that, no evidence that he understood Beltran, what Beltran may or may not were [sic] doing, that Crespo was the one who was saying, look, I’m not going to just go along with the flow. Defendant may not have known what was going on.” (Italics added.)
(2) Analysis.
Appellant claims the above italicized comments constituted Griffin error because they referred to an absence of evidence that only appellant’s testimony could have provided. We conclude otherwise. Appellant waived the issue by failing to object to the comments on that ground. (People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1244.)
Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106] (Griffin).
Moreover, Griffin holds that it is error for a prosecutor to comment, directly or indirectly, on the failure of the defendant to testify. (People v. Hughes (2002) 27 Cal.4th 287, 371-372.) As a result, the prosecutor may not “refer to the absence of evidence that only the defendant’s testimony could provide.” (Id. at p. 372.) He or she may, however, comment “on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses.” (People v. Hovey (1988) 44 Cal.3d 543, 572.) In determining whether Griffin error has occurred, we ask whether there is a reasonable likelihood that jurors could have understood the prosecutor’s comments to refer to defendant’s failure to testify. (People v. Clair (1992) 2 Cal.4th 629, 663.)
Our Supreme Court has frequently distinguished between appropriate comment on the absence of evidence and inappropriate references to a defendant’s failure to testify. Thus, in People v. Sanders (1995) 11 Cal.4th 475, the Court found no Griffin error where the prosecutor commented in closing argument that the defense had offered “no explanation” for “certain damning aspects” of the case. (People v. Sanders, supra, at pp. 527-528.) Similarly, in People v. Medina (1995) 11 Cal.4th 694, the prosecutor argued that defense counsel had offered no “rational explanation” for evidence that witnesses saw the defendant with a handgun. The prosecutor noted that, “ ‘none of this evidence was explained... the defense attorney did not explain this evidence and how it pointed to some other rational conclusion, because it doesn’t, and he can’t.’ ” (Id. at p. 756.) Our Supreme Court held this was not Griffin error because the prosecutor’s comments “were directed to the general failure of the defense to provide an innocent explanation as to why defendant was armed... at the time of the robberies. These remarks contained no references, express or implied, to defendant’s own silence, and therefore were unobjectionable.” (People v. Medina, supra, at p. 756.)
In the present case, the prosecutor made no express or implied references to appellant’s failure to testify. Beltran could have testified as to what he may or may not have been doing (including whether he favored or opposed the modification of the contract), and Crespo could have testified as to whether he was saying he would go along with the council. No Griffin error occurred.
Moreover, “ ‘brief and mild references to a defendant’s failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error.’ ” (People v. Turner (2004) 34 Cal.4th 406, 419-420.) Appellant was acquitted on count 1. No prejudicial Griffin error occurred. (Cf. Chapman v. California, supra, 386 U.S. 18, 24.)
b. The Prosecutor’s Comment that Appellant Did Not Play an Entire Recording.
(1) Pertinent Facts.
During appellant’s cross-examination of Crespo, appellant played a portion of a DVD. The portion recorded that part of the November 13, 2006 council meeting during which someone other than Crespo could be heard asking something to the effect of whether appellant would be able to absorb an increase in the franchise fee from $25,000 to $50,000. Crespo acknowledged during cross-examination that the person asking the question was not he.
The prosecutor objected on hearsay grounds to the further playing of the DVD. Appellant argued the evidence was rebuttal because “Crespo presented this exclusive award to United as... something less than above board; something else than a clean transaction happened here, and implying that his colleagues were involved in some corrupt activity.” (Sic.) The court ruled that appellant was not allowed to testify via the videotape unless counsel called appellant to the stand. The court also ruled that appellant’s statements on the DVD were inadmissible hearsay and asked appellant if he wanted to offer anything “other than it’s rebuttal evidence.” Appellant indicated he did not, and the court ruled appellant could not play the DVD.
Appellant later asked if he could play the DVD if it rebutted “any claim” that Crespo made. The court indicated any impeachment had to be relevant. The court stated appellant needed to think about and explain why the DVD was relevant if appellant wanted to play more of it. The court indicated the “political machinations of Bell Gardens” were irrelevant.
During jury argument, appellant commented that (1) Crespo had testified that Crespo was the person who had asked at the November 13, 2006 council meeting if appellant was prepared to pay the franchise fee increase, but (2) the DVD showed Crespo was not the person who had asked that question.
During closing argument, the prosecutor commented as follows: “Defense A, this video of an entire city council meeting. They [the defense] show you a snippet. Three, four seconds where some council member asks about the $25,000 franchise fee. And Mr. Crespo says, that wasn’t my voice. And defense says, oh, there you go. Mr. Crespo, you said that you were one of the people who asked the question. We didn’t hear it on this clip. Notice they didn’t play the whole meeting for you. Mr. Crespo mentioned that he wasn’t the only one who had asked about the fee; he along with others did. So that’s another example of the defense just taking a little snippet and saying, look, it shows he’s – [.]” (Italics added.) Appellant objected that the prosecutor had mischaracterized the evidence. The court overruled the objection.
(2) Analysis.
Appellant claims the prosecutor committed misconduct by commenting, “Notice they didn’t play the whole meeting for you.” Appellant argues this was misconduct because “the prosecution successfully obtained exclusion of all but one short part” of the DVD. However, appellant failed to object on the ground of prosecutorial misconduct or request a jury admonition with respect to the prosecutor’s comment, which would have cured any harm. Appellant waived the prosecutorial misconduct issue. (Cf. People v. Gionis (1995) 9 Cal.4th 1196, 1215; People v. Mincey (1992) 2 Cal.4th 408, 471.)
Even if the issue was not waived, in People v. Hill (1998) 17 Cal.4th 800, our Supreme Court stated, “ ‘The applicable federal and state standards regarding prosecutorial misconduct are well established.... Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ ” [Citation.]’ [Citation.]” (Id. at p. 819.)
In the present case, the prosecutor implied by his argument that appellant did not want to play the rest of the DVD because the jury then would have heard Crespo ask appellant if appellant was prepared to pay the franchise fee increase. Assuming arguendo that if the rest of the DVD had been played, it would have reflected that Crespo did not ask appellant about the increase, nothing in the trial court’s ruling precluded appellant from playing any portion, or all, of the DVD except to the extent it presented inadmissible hearsay from appellant, irrelevant impeachment, or irrelevant information about Bell Gardens politics. When invited to proffer any other theory of the DVD’s admissibility, appellant did not argue that the DVD could be played to show that Crespo did not ask appellant about the increase.
We conclude no prosecutorial misconduct occurred. Moreover, our prejudice analysis with respect to appellant’s previous claims compels the conclusion that any prosecutorial misconduct was not prejudicial under any conceivable standard. (Cf. People v. Watson, supra, 46 Cal.2d at p. 836; see Chapman v. California, supra, 386 U.S. at p. 24.)
5. No Error Occurred When Impeachment Evidence Was Not Admitted.
a. Pertinent Facts.
Prior to trial, the court considered motions in limine. Appellant proffered testimony from Mr. Ornelas, the Bell Gardens city manager, about his relationship with Crespo. According to appellant, Ornelas would testify concerning “verbal assaults” and profanity from Crespo and towards Ornelas and other city officials. Appellant argued the testimony was relevant to show Crespo was not threatened by appellant’s February 28, 2007 statements. Crespo, by his statements, meant only that he was going to hurt someone politically and, similarly, appellant, by his statements, meant only that he was going to hurt someone politically. The People argued the evidence was irrelevant character assassination of Crespo based on incidents that occurred several years previously.
The court indicated the proffered testimony was not clearly relevant, and the proffered events would have to be close in time to the present offenses to be admissible. The court also indicated it would not rule on the matter until Ornelas had testified outside the presence of the jury.
Appellant commented Ornelas had prepared a report which apparently contained, inter alia, information about persons being fired. The court stated, “[w]e’re not going to bring up the firing incidents and all that stuff.” Appellant agreed that some of the information in the report was irrelevant. Appellant indicated he could highlight what he believed were the relevant portions of the report. The court indicated it would consider the admissibility of specific instances which were close in time to the present offenses and which were offered to show (1) Crespo would not be threatened by appellant’s February 28, 2007 statements, or (2) those statements were merely a political threat. The court also indicated it would consider excluding the evidence under Evidence Code section 352.
Appellant later proffered an October 2007 memorandum reflecting that Crespo threatened Ornelas by saying, “ ‘[y]ou fuck with Crespo, and you are a dead man.’ ” Appellant argued Crespo’s statement was merely a political threat, and that it provided evidence that appellant’s statement was similarly a political threat. The court noted appellant had indicated Crespo had not been criminally charged for his statement. The court observed that Crespo’s statement and appellant’s statements were separate events. The court tentatively ruled Crespo’s above quoted statement would be excludable under Evidence Code section 352. The court also tentatively ruled it would permit Ornelas to testify only if appellant put in issue the meaning of appellant’s words and whether Crespo took them as a threat.
Appellant also argued Ornelas would provide testimony indicating that Crespo made his charges against appellant to advance Crespo’s political career. Appellant commented that Crespo called political advisors, and not the police, after the subject threat. The court indicated Crespo could be cross-examined on those matters, but the court would reserve ruling on whether Ornelas would testify at trial. The court noted it had cursorily reviewed a 60-page document which referred to multiple incidents between Crespo and Ornelas, and many of the items contained in the document were irrelevant. Appellant acknowledged much of the information in the document was irrelevant.
The prosecutor later indicated there was a 1999 police report involving an incident in which Crespo displayed, but did not brandish, a gun at a homeowner’s association meeting. The prosecutor indicated the incident did not lead to an arrest or filing. Appellant claimed Crespo brandished the gun and used profanity towards persons. Appellant argued Crespo’s profanity was evidence he was not threatened by appellant’s statements. The court indicated it would think about the issue but appellant would have to demonstrate relevance.
b. Analysis.
Appellant, in his heading in his opening brief, asserts his trial counsel failed to offer evidence and the trial court failed to permit introduction of other offered evidence. His opening brief cites to the discussions during the motions in limine and asserts there was various evidence that appellant argued would put in context his statements and show Crespo was not really threatened.
The burden is on appellant to demonstrate error from the record; error will not be presumed. (In re Kathy P. (1979) 25 Cal.3d 91, 102; People v. Garcia (1987) 195 Cal.App.3d 191, 198.) Appellant has failed to clearly identify what evidence he asserts was not offered by his trial counsel, and what offered evidence the trial court allegedly failed to permit appellant to introduce. The trial court’s rulings during the discussions concerning the motions in limine were clearly tentative. Appellant fails to demonstrate that he ever produced Ornelas as a witness to testify outside the presence of the jury, that appellant sought to present during trial the evidence at issue, or that the trial court ever made final rulings on the issues concerning which it had tentatively ruled.
The trial court’s tentative rulings were proper, appellant has failed to demonstrate that any final rulings by the court during trial were erroneous, and even if the issue of ineffective assistance of his trial counsel had been preserved for appellate review, the record sheds no light on why counsel failed to act in the manner challenged, counsel did not fail to provide an explanation after being asked to provide one, and we cannot say there simply could have been no satisfactory explanation. Appellant’s ineffective assistance contention must be rejected. (Cf. People v. Slaughter (2002) 27 Cal.4th 1187, 1219.)
Appellant refers in his heading in his opening brief to a “failure of his trial counsel to offer evidence” but does not expressly argue that his counsel provided ineffective assistance of counsel. As respondent observes, appellant forfeited any ineffective assistance claim. (People v. Gionis, supra, 9 Cal.4th at p. 1215.) Appellant makes an ineffective assistance claim for the first time in his reply brief, and has therefore waived that issue. (Cf. People v. Thomas (1995) 38 Cal.App.4th 1331, 1334; People v. Jackson (1981) 121 Cal.App.3d 862, 873.)
As to appellant’s third contention discussed earlier, appellant claims he was denied effective assistance of counsel by his trial counsel’s failure to properly object to the challenged testimony, or to move for a mistrial. As to appellant’s fourth contention, he claims he was denied effective assistance by his trial counsel’s failure to properly object to the challenged prosecutorial comments. We conclude as to both claims that, based on our previous analysis, appellant has failed to demonstrate any prejudicial constitutionally-deficient representation. (Cf. People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) Moreover, appellant waived the above ineffective assistance issue associated with his third contention by first raising it in his reply brief. (Cf. People v. Thomas, supra, 38 Cal.App.4th 1331, 1334; People v. Jackson, supra, 121 Cal.App.3d 862, 873.)
DISPOSITION
The judgment (order granting probation) is affirmed.
We concur: KLEIN, P. J., ALDRICH, J.